Dr. Nole Specs created a website for his successful optometry practice. Over the holidays, Dr. Specs received a threatening letter from Mo Dougherty, a plaintiff’s lawyer. Dougherty’s letter claims Specs’ website is not ADA compliant, and demands that Specs fix the problem immediately and pay Dougherty $2,500 or Dougherty will sue. While Specs knows the ADA applies to the brick and mortar aspect of his business, he’s never heard of it applying to websites and thinks it’s a scam. Should Specs just ignore Dougherty’s letter?
The Federal Government Believes Websites are Governed by the ADA
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a disability in places of public accommodation, such as a restaurant, movie theater, school, doctor’s office, or other business. Recently, 60 Minutes ran a story on “Drive-By Lawsuits,” where plaintiffs’ lawyers or people hired by them will drive around looking for businesses that are not ADA compliant. Typically, the public considers this prohibition applying to wheelchair access. But in 2010, the Department of Justice (DOJ), which enforces the ADA, issued a notice stating it would amend the language of the ADA to ensure accessibility to websites for individuals with disabilities. As a result of this notice there has been a proliferation of demand letters from plaintiffs’ lawyers threatening to sue businesses for having non compliant websites, and offering to settle if the business will bring the website into compliance and pay the lawyer a few thousand dollars to go away.
How do you ensure ADA Compliance?
First, it’s important to know that the DOJ has not issued binding rules on regulations on ADA compliance for websites. The DOJ is not expected to issue binding rules until sometime in 2018, unless the new administration changes course on this issue. However, the DOJ and plaintiffs’ lawyers consistently suggest that websites will be considered ADA compliant if they follow the Web Content Accessibility Guidelines (WCAG-2.0) Level AA. For example, if the website includes live audio content, Level AA guidelines call for the website to also provide captioning.
Tilting the Scales in Your Favor
Although the DOJ has not issued binding rules and regulations, you should take steps to bring your website within the WCAG-2.0 Level AA guidelines now. Some plaintiffs have filed lawsuits against plaintiffs even without the binding rules in place and successfully argued that the website was a place of public accommodation that was not accessible to disabled individuals. This is especially important for businesses that sell goods online, because courts have routinely considered those businesses’ websites to be places of public accommodation.