Retail websites targeted by ADA lawsuits

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Every page on the Body Glide website shows a familiar blue-and-white wheelchair logo, similar to those used to designate handicapped parking or handicapped-accessible facilities ranging from doorways to restrooms.

The icon is meant to alert users that the Body Glide website is equipped with software intended to make it accessible to customers with disabilities, particularly the blind and visually impaired. For Body Glide President and CEO Bill Sternoff, it means the maker of protective skincare products that address chafing and blistering for athletes and other active individuals is inclusive.

But the icon has another meaning as well — Sternoff hopes it will ward off other potential lawsuits.

Like a growing number of retailers and brands these days, Body Glide was threatened with a lawsuit under the Americans with Disability Act for operating a website that was allegedly inaccessible to disabled buyers.

Sternoff says he was bewildered when he learned of the potential suit. Headquartered in Bellevue, Wash., the company has no physical stores — the most common target of ADA claims against retailers — but sells its products on its website and through national retailers that include Dick’s Sporting Goods, Target and REI.

“My first reaction was, ‘huh.’ Then I looked at it and I said, ‘no, no, no, there is a there there,’” Sternoff says.

‘Public accommodations’

Signed into law in 1990 — three years before the World Wide Web was officially released to the public and long before ecommerce as it is known today existed — the ADA specifically prohibits disability-related discrimination “in any place of public accommodation.”

But while the law defines many types of businesses with physical locations as “physical accommodations,” it makes no mention of websites.

Nonetheless, website accessibility lawsuits have proliferated in recent years. In 2018, 2,258 cases were filed in federal court, nearly triple the 814 seen the year before, according to Seyfarth Shaw, a law firm that follows the issue. That compares with 262 in 2016 and only 57 in 2015 .

According to Level Access, a company that provides website accessibility technology, 20 percent of the lawsuits are filed against retailers.

The cases have resulted in a patchwork of inconsistent court decisions that attempt to interpret the ADA and its reach, which have, in turn, encouraged more lawsuits. The U.S. Department of Justice at one point attempted to issue guidance on website accessibility but backed off amid concerns that it did not have clear authorization under the ADA to do so. Last year, the DOJ finally affirmed that the ADA does cover websites, a move that is expected to contribute to additional legal action.

In what has become one of the most noteworthy ADA cases, Domino’s Pizza was sued by a blind customer seeking to order a pizza from the company’s website and mobile app. The customer and his attorneys argued that the ADA applies not only to physical accommodations but also to digital properties including websites and apps, and a federal appeals court sided with the plaintiff.

Domino’s asked the U.S. Supreme Court for a review, but the court refused to hear the case this October. Leaving the appeals court’s ruling in place likely means an acceleration of ADA lawsuits going forward.

The National Retail Federation had filed a brief in support of Domino’s this summer and was disappointed by the decision.

“With a growing number of website accessibility cases being filed and conflicting rulings from circuit courts across the country, this is an issue that needs the clarity of a Supreme Court ruling,” NRF Senior Vice President and General Counsel Stephanie Martz says. “Without guidance on what rules should apply, litigation will continue to divert resources from actually making websites accessible.”

NRF is one of many business groups that cite unclear rules governing how businesses should reach compliance.

“Congress and the DOJ have never specified what it means to be compliant,” Sternoff says. “When that happens, these things are left to the courts, and over time you have the development of judicial law that comes in the wake of substantive law.”

That has left businesses large and small as easy marks for lawsuits, according to Sternoff.  Lawyers “saw that it was easy to bring these suits and in the vast majority of cases get quick settlements that cost the attorneys next to nothing in investment of time and discovery. All they have to do is make the complaint,” he says.

Many companies, especially small businesses, choose to settle rather than fight the lawsuits and threatened suits. Resolving the claims can cost anywhere from $10,000 to $20,000, according to NRF.

Technical and legal standards

During his research after receiving notice that his business was threatened with the lawsuit, Sternoff says he found a number of companies that provide software and coding intended to make websites compatible with screen readers used by visually impaired consumers.

Body Glide uses the services of accessiBe Ltd., which says its system uses artificial intelligence technology to translate web content into the alternative text “tags” used by screen readers. Sternoff says it costs Body Glide less than $500 annually for code that is updated every 24 hours to ensure that descriptions for web elements such as video, images and text are in compliance with the proper technical standards.

While technical standards exist, legal standards are a separate issue and some businesses have reported being sued even when they believed they were technically compliant. Nonetheless, Sternoff says that once the adjustments were made to the Body Glide site, the threat of a suit was eliminated. His advice to others is to be proactive if an ADA lawsuit comes their way.

“They shouldn’t waste one second. They should get on it right now. Find a service that will deliver your website so that it is in compliance with all applicable laws, which protect the rights of everyone who comes to your website,” he says.

Level Access says more than 750 million people worldwide are categorized as having disabilities, or about 25 percent of the global population. Legal issues aside, co-founder and CEO Tim Springer says having an accessible website makes good sense because reaching people with disabilities means the opportunity for greater sales and recognition. Springer says businesses should approach accessibility early in the development lifecycle of their digital properties; doing so afterward means additional expense and resources for remedies.

“The problem is that you have people with disabilities who have different needs in terms of how they access digital content and digital technology,” Springer says. Technical standards have existed for more than 20 years that set requirements that need to be met to ensure a reasonable level of accessibility, he says.

For instance, screen reader technology used by the blind reads aloud text that is on the screen and a description of images. But Springer says if the website has no underlying description of the image, then the screen reader cannot offer that information to the user.

“If that description of the image is there, it is fine and it works well,” Springer says. “If it is not there, then it creates a problem.”

With more business being done online, some say web accessibility is essential.

“Along the way, our world shifted and became more digital,” says Matt Ater, vice president of corporate business development for the Paciello Group, an accessibility consultant.

“Your place of business is not just a storefront anymore,” Ater says. “Your place of business may be ads online that take you to your website to get a discount. The issue facing most organizations today is their websites need to be compliant, and why not? Why wouldn’t you want to serve a growing population?”

M.V. Greene is an independent writer and editor based in Owings Mills, Md., who covers business, technology and retail.

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