Skip to main content

Smart law: The new wave and surf-by lawsuits

Vol. 28 Issue 3

Post Categories: Law

The Americans with Disabilities Act provides the basic legal requirement that employers must not discriminate against individuals who are qualified for a job, with or without a reasonable accommodation.

If your company website accepts orders, posts goods or services for sale, permits customer reviews and testimonials, takes reservations, provides addresses and directions to business locations, accepts job applications, includes FAQs, has email or chat features or has any other online presence, you should make sure these aspects are accessible to persons with disabilities.

Although the ADA applies to private employers with 15 or more employees (note: some state laws have lower coverage thresholds), there is an often-overlooked requirement of the ADA.

In addition to the ADA’s employment aspects, businesses (including those with fewer than 15 employees) that are considered places of public accommodation are required to comply with ADA Title III with respect to the goods and services they provide to the public.

The surf-by lawsuit

What this means is that the goods and services a business offers to the public must be “accessible” to persons with disabilities. While this requirement was traditionally considered to cover “brick-and-mortar” building access issues, Title III of the ADA also has been interpreted to require that the website of a business be accessible to persons with disabilities.

Significantly, during 2018, more than 1,000 lawsuits were filed alleging that the websites of businesses failed to comply with the ADA.

For years, businesses have been forced to deal with “drive-by” lawsuits under Title III of the ADA. These lawsuits typically involve a prospective plaintiff, or the plaintiff’s attorney, simply driving by or entering any businesses with technical ADA violations, such as inaccessible entrances or improperly graded entrance ramps, and filing a lawsuit without warning.

Now, court decisions have paved the way for a new type of lawsuit under Title III of the ADA — the “surf-by” lawsuit. In these cases, a plaintiff or his or her attorney simply needs to log onto a company’s website, regardless of whether any sales are conducted on the site, and determine whether the website properly interfaces with disabled persons.

In one eye-opening ruling, a court entered a verdict against a business because its website did not interface properly with a visually impaired person.

In this case, the company did not sell any products on its website but allowed users to add coupons to their loyalty cards, find the nearest brick-and-mortar store and refill orders for in-store pick-up.

The disabled person complained that he was deterred from shopping at the store because he could not review and select digital coupons (which also were provided in print form), could not easily locate a store online through the company’s website (even though he could obtain that information from an accessible search engine) and could not refill his orders online for in-store pick up.

The court found that because the website offered services and because those services had a sufficient nexus to a physical store, the website of the business was covered by Title III of the ADA and was required to be accessible.

What should businesses do?

The rise of “surf-by” lawsuits challenging businesses’ websites is inevitable. Businesses need to be proactive to ensure their websites meet legal compliance standards before a legal situation develops.

If your company website accepts orders, posts goods or services for sale, permits customer reviews and testimonials, takes reservations, provides addresses and directions to business locations, accepts job applications, includes FAQs, has email or chat features or has any other online presence, you should make sure these aspects are accessible to persons with disabilities.

Remember, it’s not just visual impairments to be considered when making your website compliant with the law. Some of the more common website accessibility issues affect individuals with hearing impairments and those who are unable to use a mouse and must navigate with a keyboard, touchscreen or voice recognition software.

While the Department of Justice has not yet set forth any requirements or regulations for website accessibility, courts have looked to the Web Content Accessibility Guidelines published by the World Wide Web Consortium for guidance. The WCAG provides web designers with criteria for making digital content more accessible to those with disabilities.

One approach to deterring and preventing such lawsuits is to consult with legal counsel or an accessibility consultant to identify any barriers to access on your company’s website, and prepare and implement an appropriate remediation plan.

As has always been the case, taking appropriate preventive measures is the best defense against Title III lawsuits – and it may open doors to a brand new customer base.