Commentary

Keeping your website protected from lawsuits

Protecting your website from lawsuits is an important part of thriving on the digital wave. Here are some things to watch out for to your brand safe.

October 3, 2018

By Brian E. Cole, attorney, Carothers DiSante & Freudenberger LLP

A restaurant's website can be an invaluable tool to attract new customers, hype menu offerings and retain loyal customers through valued rewards. But, does your website also put you at risk of a lawsuit? Over the past year, there has been a significant increase in the number of website disability access lawsuits filed against businesses with consumer-facing websites in virtually every industry. Just behind retail, the restaurant industry has been hit the hardest, and the fast casual segment is certainly not immune. This article reviews the requirements and law behind website disability accessibility lawsuits and how fast casual restaurants can avoid getting served with this type of lawsuit.

What is a website disability access lawsuit?

Plaintiffs in website disability access lawsuits (web access lawsuits) allege that a consumer-facing website is discriminatory because it contains certain barriers making it not accessible to individuals with a visual, auditory, or other disability. These web access lawsuits are being brought under Title III of the Americans with Disabilities Act as well as state non-discrimination laws such as California's Unruh Civil Rights Act. The costs associated with these lawsuits can be significant.

For example, under the ADA a fast casual may be required to quickly invest time and money to bring its website into compliance. Moreover, attorneys' fees are recoverable under the ADA, which can make defending a web access lawsuit a costly process. Adding to the potential exposure is the minimum statutory penalties that are available under certain state non-discrimination laws, such as the Unruh Act. Web access lawsuits are being brought against fast casuals of every shape and size from single-unit local concepts to the major segment leaders.

The number of filed web access lawsuits is surging. From approximately 60 federal lawsuits filed in 2015 to over 250 in 2016. Then, in 2017, the number of these lawsuits exceeded 800 and appears to be on pace to break 1,000 for 2018, which includes a number of putative class actions. Of these lawsuits filed in federal courts, New York, Florida, and California account for the vast majority. These figures, however, represent only a portion of the companies actually dealing with or being threatened with these lawsuits. Indeed, many of these matters are never filed as lawsuits since companies may settle or resolve the matter after receiving a demand letter, but before a complaint is actually filed.

Further, in certain states like California, these matters will be filed in the state court to avoid uncertain case law at the federal level, while seeking minimum statutory damages through the state's non-discrimination laws. In 2017, the first matter of this kind to go to trial found in favor of the plaintiff against the supermarket chain Winn-Dixie. As a result, Winn-Dixie faced a 3-year injunction requiring its website to be accessible (including third-party content), annual website accessibility training for employees, and adoption of a website accessibility policy.

What are the current website disability access requirements?

The simple, and unfortunate, answer for fast-causals looking to have a “compliant” website is that the requirements are not currently clear. In 2010, the U.S. Department of Justice in an Advanced Notice of Proposed Rulemaking announced that it would issue regulations on website accessibility standards for public accommodation websites. To date, however, the DOJ has not set forth its regulations and at the end of 2017, the DOJ publically abandoned its rulemaking on website accessibility. While it remains unclear if and when the DOJ will issue regulations, the matter has gained the attention of the legislature. Recently, on June 20, 2018, a bi-partisan group of 103 members of the House of Representatives endorsed a letter to Attorney General Jeff Sessions, urging the DOJ to publically state that a private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of a clear final rule on website accessibility standards.

Despite the current lack of defined regulations, many companies are looking towards the website accessibility standards set forth by the Web Accessibility Initiative of the World Wide Web Consortium for guidance and benchmarking. In the 2008, this international standards organization published version 2.0 of the Web Content Accessibility Guidelines, which is referred to as WCAG 2.0.

What is the web content accessibility guidelines 2.0?

While WCAG 2.0 is not the legal standard for public accommodation websites under Title III of the ADA or Unruh Act, it is the standard that the DOJ has used in settlements and the legal standard for certain federal agency and air carrier websites. Accordingly, many of the web access lawsuits directly rely on WCAG 2.0 as a benchmark to allege that a website is not accessible, and thus discriminatory, based on a website’s failure to meet these standards. WCAG 2.0 sets forth a series of specific success criteria as standards for an accessible website and include such things as embedded alternate text that can be utilized with a screen reader for the visually impaired, font size and contrast, and well as closed captioning features. WCAG 2.1 was recently published in June 2018 and adds 17 additional success criteria, many of which account for the changes in technology and electronic devices.

How fast casuals van protect themselves

Become familiar with the WCAG 2.0/2.1 standards to understand the guidelines and determine if certain modifications to the website would improve the accessibility of disabled individuals.
Make accessibility modifications to the website, prioritizing those areas used most by customers.
Consider incorporating a website accessibility statement on the website and referring disabled individuals to alternate forms of communication (e.g. telephone number) to obtain the information on the website.
If developing or updating a website, consider working with designers and vendors proficient with WCAG 2.0/2.1 and include such considerations in the scope of work.
Consider engaging an accessibility expert to audit or perform testing on the website.