Law Office of Rick Morin, PC

By now most business owners in California know that their businesses must comply with the Americans with Disability Act (“ADA”). Most business owners also understand that they can be sued for not following the ADA rules. However, there is a new problem in California. Businesses are being sued because their website are not ADA compliant. Keep reading to learn more about this new problem.

The ADA is a Great Law with Unintended Consequences

The ADA is a very well intentioned law. It was designed to ensure that public places in America are fully accessible to people with disabilities. This is a goal that everyone can agree upon. However, when the law was enacted, our legislators did not want to create a new “ADA police.” Instead, they left enforcement up to private individuals.

This has created a cottage industry of lawyers and professional plaintiffs throughout the country, and especially here in California. These “serial litigants” file thousands of lawsuits every year in California that cost business owners big money. Not all of these lawsuits are bad. Sometimes a business owner refused to provide ADA access and the lawsuit is exactly what is needed to ensure compliance. However, many of the lawsuits that I see are over highly technical violations that did not actually impede real access to the business. We call these “drive-by lawsuits” in the business.

To file a traditional ADA lawsuit, the plaintiff must be disabled, travel to the business, and encounter at least one “barrier” that impacts his or her ability to enjoy the goods or services at that business. These are not very difficult hurdles for a serial litigant to overcome, but at the very least the plaintiff must allege that they visited the business or property. You could only imagine how many miles professional ADA lawsuit filers must rack on their cars driving around to find businesses to sue.

The New Frontier: Suing Websites for Lack of ADA Compliance

Recent legal decisions by higher courts have made it clear that websites associated with brick-and-mortar businesses must comply with ADA. In other words, these websites must be accessible to persons with disabilities to the same extent that the physical business location must be.

Here’s an example: imagine a local restaurant that offers online ordering or even an online menu. We all know that the restaurant itself must be accessible. But the law has evolved here in California such that the online ordering system, or even the online menu, must be accessible.

There are various best practices that website designers and developers can implement to ensure the accessibility of websites. Simple fixes include: offering closed captioning in videos so that deaf persons can enjoy an informative video and making sure that menus are presented in textual, and not image-based, formats so that a screen reader can read the menu to a blind user. In fact, there is now a whole industry of website designers that hold themselves out as being accessibility experts. Their services will likely be in high demand as these lawsuits continue to flood our courts.l