Brief Review:
Website accessibility lawsuits continue to be brought across the United States. In short, these lawsuits allege that websites are not accessible to persons with disabilities and are in violation of the Americans with Disabilities Act. They assert that the website is not compliant with the World Wide Web Consortium’s (“W3C”) Web Content Accessibility Guidelines (“WCAG”). WCAG’s goal is to provide website designers and developers across the globe with standards to meet the needs of users with sight, hearing and mobility impairments, among others. Up until recently, compliance with WCAG 2.0AA has been the benchmark against which websites were measured. WCAG 2.0AA has been endorsed by the Department of Justice (the “DOJ”). Under the Obama administration it was anticipated that DOJ would issue guidance on website accessibility in 2018. However, the Trump administration has put website accessibility on the inactive list which has resulted in litigation across the country with varying degrees of success and has caused a circuit split and even splits within circuits.
New Guidelines from the World Wide Web Consortium
In a June 5, 2018 press release the W3C published updated guidelines, Web Content Accessibility 2.1 (WCAG 2.1). WCAG 2.1 expands coverage to mobile devices, improves touch interaction and adds more support for those who are sight impaired and have cognitive and learning disabilities thus furthering its goal to create technical standards and guidelines so everyone may enjoy the internet. We anticipate WCAG 2.1 will be the new standard by which websites are measured.
New Wave of Website Lawsuits
There are two new types of website lawsuits. Lawsuits against potential employers claiming barriers to completing online job applications and lawsuits against hotels arguing their websites lack essential information.
As respects the online job applications, recent litigation has asserted claims against employers who accept online job applications. These lawsuits have been commenced by seeing impaired plaintiffs who allege that the online job applications are not accessible to them and act as a barrier to employment.
The second wave of lawsuits has been brought by plaintiffs who are alleging that hotel websites do not contain enough information about the accessibility of the hotel itself. For example, the website does not adequately describe the parking lot or the accessibility of the guest rooms so that potential guests to the hotel are not able to confirm whether the hotel itself will accommodate their needs. This new wave of website litigation is particularly concerning because one does not need to allege that she/he was denied access or encountered an architectural barrier but that she/he simply was unable to confirm by looking at the website that the hotel itself could accommodate their needs.
Effort to Crack Down on the Serial and “Drive-by” ADA Plaintiffs
Courts and legislators across the country have been making strides with varying degrees of success to crack down on the Serial and Drive-by ADA Plaintiff. Some jurisdictions require that a plaintiff establish that she/he is a bona-fide purchaser. Others require that appropriate notice be given before commencing a lawsuit, such as was recently passed the House. In other jurisdictions the Attorney General has stepped in to stop the Serial and Drive-by Plaintiffs.
