A recent article noted that 75 New York City art galleries got sued for allegedly violating the Americans with Disabilities Act. Additionally, the Ninth Circuit Court of Appeals held, despite the absence of government regulations or standards for private websites, a website owner could be sued for violating the Americans with Disabilities Act (ADA). There is now a three-way split among jurisdictions in the U.S. regarding the applicability of the ADA to websites, holding: (1) The ADA applies to websites; (2) the ADA does not apply to websites; or (3) the ADA applies to websites only if the website is connected to goods and services of a bricks and mortar business, i.e., a business with physical location open to the public (this is the rule in California and other Ninth Circuit states). So depending on where you are doing business, you have differing levels of exposure to an ADA website lawsuit.)
These lawsuits are terribly unfair for the following reasons:
- Unlike physical structures, there are no government standards for what makes a website accessible to the disabled. The only guidance is put out by a private non-profit organization, the World Wide Web Consortium (W3C), and is called Web Content Accessibility Guidelines (WCAG). But these guidelines operate more like ‘best practices’ than regulations. Thus, they do not take into account non-feasibility or non-achievability in many websites for many of the guidelines. They are optimum goals rather than minimum standards. Thus, the websites of many of the leading plaintiff litigants, such as the National Federation for the Blind, don’t get perfect scores on WCAG accessibility scanners.
- Appellate Courts, like the Ninth, have ruled in favor of plaintiffs with little apparent appreciation for the impact of their rulings on small businesses or individuals. The only businesses which can afford to fight a lawsuit to the appellate level are big businesses like Domino’s Pizza and Target. They do not make sympathetic defendants. But the great majority of defendants are small businesses and individuals who are forced to pay a plaintiff thousands of dollars to dismiss a lawsuit, regardless of merit, or spend many more thousands to fight the lawsuit.
- A person or small business should be able to insulate his/her/itself from an ADA lawsuit by complying with a clear and readily identifiable legal standard. Because the Ninth has essentially held that every lawsuit has a right to advance to the evidentiary stage, the battle is already lost for defendants, no matter how much effort they have expended to make their website accessible before getting sued. There is no way to avoid getting sued or easily dismissing a meritless lawsuit. (This is not to say that accessibility upgrades are a waste of time. They may deter some suits and provide a basis for a defense on the merits. But upgrades are not a guarantee against a lawsuit – far from it.)
- An alleged ADA violation does not require evidence of injury or harm. It does not require negligence or malevolence by the defendant. It awards attorney fees to the plaintiffs but almost never to defendants. Some states, like California, have created laws that add a monetary bounty of $4,000 to ADA non-compliance. For plaintiff attorneys with no moral qualms about forcing several thousand dollar payments from unwitting defendants, it’s a free money machine. Defendants always choose paying for settlement no matter how strong their defense on the merits.
- Before the website lawsuits, serial plaintiffs focused on physical structures which were largely exempted from ADA compliance because they were built before ADA standards were enacted. However, Congress also enacted what it thought was a gentle nudge for businesses in pre-ADA structures to do the easy accessibility stuff, e.g., move a trash receptacle to make room for a wheelchair. The language enacted was “readily achievable . . . without much effort or expense.” But in a court of law, rather than creating a clear standard, that term creates an evidentiary question. Hence, it became far more lucrative for plaintiffs to sue pre-ADA mostly-exempt businesses rather than the businesses to which the ADA was meant to apply. The pre-ADA businesses could not refer to a clear standard for their defense. As a result, plaintiff’s suing pre-ADA businesses were protected from having their lawsuits dismissed at an early stage. Plaintiffs could thus maintain the threat of financial catastrophe to extort several thousand from every defendant.
- But even with the aforementioned lawsuits against pre-ADA businesses, there are at least the new construction standards for reference. But with websites, there are literally no workable standards.
- Non-profit disabled advocacy groups, such as the National Federation for the Blind, have displayed little concern with fairness, innocence, or harm to persons outside their immediate constituency. They lend their legitimacy to nearly every plaintiff case that is appealed.
As an attorney representing defendants of ADA lawsuits, I have represented some of the smallest businesses or individuals. In this gig economy of historic U.S. wealth inequality levels and diminished middle class jobs, being a “business” doesn’t have the same meaning as it used to have. Many are below the poverty line or just eking out a modest living. Often defendants are coping with other extreme difficulties, such as health matters or financial stresses. Often the money that is expended in the lawsuit diminishes a child’s college savings or money to for health treatment. It is simultaneously heart-breaking and disgusting to witness hard working people forced to pay wealthy and cynical plaintiffs and their firms. The continued scourge of these lawsuits represents a failure at every level of the legal system – legislative, judicial, ethics enforcement, and client representation.
It’s hard to think of any law that has been as abused to extort money in meritless claims against small businesses and individuals as the ADA. The website lawsuits set a new low.