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ADA-noncompliant websites become growing concern for e-commerce retailers

Retailers know that complying with the Americans with Disabilities Act means providing certain accommodations for their customers: ramps, parking spots and specially equipped bathrooms, for starters.

Retailers know that complying with the Americans with Disabilities Act means providing certain accommodations for their customers: ramps, parking spots and specially equipped bathrooms, for starters.

Less intuitive is what they need to do to comply with the ADA online, and according to the National Retail Federation, this has come back to bite them. More website-accessibility lawsuits have been filed in federal court so far this year than in all of 2017, and retailers have been the hardest hit.

Title III of the ADA prohibits businesses from discriminating against people with disabilities “in the full and equal enjoyment of public accommodations.” The confusion comes from the ADA predating the internet, and therefore having been written to satisfy the requirements of a formerly analog world.

“People understand about access and physical barriers to workplaces, they understand about workplace discrimination, but one of the biggest pushbacks we get is, ‘what are we talking about? Web access for visually impaired people?’” said Carolyn Richmond, partner at law firm Fox Rothschild LLP. “There was no internet in 1990. It didn’t exist back then and is not covered by the ADA.”

Most often, according to Richmond, the lawsuits regard accessibility for the visually impaired.

“For people who are disabled and site-impaired, it’s the internet that is their lifeline to the outside world,” she said. “They don’t often have the ability to get out and shop and it’s their computer at home that gives them more freedom. To have internet sites that can be adapted to help the visually impaired is really a savior for many people.”

The issue with ADA Title III is the lack of a definition for “public accommodations.” Sure, at the time, it would have been unreasonable for a retailer to know what the future would hold in terms of online retail; but today, that market represents a multibillion-dollar marketplace.

“For people who are disabled and site-impaired, it’s the internet that is their lifeline to the outside world.”

– Carolyn Richmond, Fox Rothschild

Though numbers specific to New Jersey were not available, 1,053 lawsuits were filed federally within the first six months of 2018. And though just four of the 814 lawsuits filed in 2017 were in New Jersey, Richmond believes that number will grow.

“The website accessibility cases haven’t taken off as quickly in New Jersey as in New York, but we anticipate seeing a lot more filed against smaller local retailers and probably restaurants in New Jersey, as well as a lot of the larger corporations who are based in Northern New Jersey will also be getting sued in 2019,” Richmond said. “We have seen a lot the hotel companies, and it’s kind of a trickle-down theory; they start at the top and work their way down.

“We see a lot of [lawsuits against] the mom-and-pops, too, and I expect New Jersey will be rife with these suits for the pharma companies and a lot of the larger companies based in the Parsippany and Northern New Jersey area.”

Jason Jendrewski, a labor and employment associate at Fox Rothschild, noted the number of suits can be misleading.

 “It’s not just lawsuits but also demand letters that plaintiff’s lawyers are sending out before ever bringing a lawsuit. It’s a bigger problem than it seems in court documents,” he said.

For retailers, these lawsuits can run anywhere from $10,000 to $90,000, according to NRF, including the payment of attorney’s fees as required by Title III.

In February, the U.S. House of Representatives approved the ADA Education and Reform Act of 2017, aimed at curbing this type of lawsuit. The law requires that litigants give businesses four months to e-right their wrongs, though opponents believe it undermines the ADA and puts disabled populations at risk. The legislation is still awaiting Senate approval.

No other federal regulations regarding accessibility for the disabled have been created, and in December, the government announced it would not create new Title III ADA regulations as part of a broader deregulation program. As a result, the lack of regulation leaves room for federal district courts to make different and contradictory decisions, according to Steven Teppler, chair of law firm Mandelbaum Salsburg PC’s cybersecurity group.

 “The districts and any federal judge can decide based upon what he or she believes the fact is, or what the spirit of the law should be. Depending upon in whose spirit you believe, you can come down either way,” he said.

To avoid finding themselves in the hot seat, retailers and businesses should provide alternative explanations of non-text content such as illustrations and photos on their websites, which can then be read aloud to users by screen readers or made larger with text magnifiers. They should also work to accommodate disabilities beyond visual impairment, such as hearing impairment and physical limitations.

“Any change that’s made, if it’s not made correctly, could present an issue for litigation. Every time you add a new product, it’s really an ongoing challenge for retailers that you have to deal with regularly,” said Jendrewski.

Some of the lawsuits argued across the U.S. have required websites to comply with Web Content Accessibility Guidelines 2.0, an international standard and range of recommendations published in 2008 that specify how to make content more accessible for people with disabilities.

Teppler recommends retailers and business owners hire counsel early on to assess the defensibility of their websites.

“The idea is it’s cheaper to make your website accessible and make sure with counsel that it’s defensible and spend that money up front,” Teppler said. “It may sound like a push to hire an attorney, but it’s much more expensive when you hire an attorney and say ‘I’ve just been sued, what do I do?’ This is clear argument for an ounce of prevention.”

And beyond avoiding litigation, improving web accessibility can help a business’ bottom line.

“There’s functionality that you can do to help the visually impaired better navigate through a website,” he said. “For retailers this is very important because most depend on websites for visibility and advertising and a lot of their commerce.”

Gabrielle Saulsbery
Albany, N.Y. native Gabrielle Saulsbery is a staff writer for NJBIZ and the newest thing in New Jersey. You can contact her at gsaulsbery@njbiz.com.

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