ADA Compliance And Your Website
A few weeks ago, an article posted on Bicycle Retailer about the recent string of lawsuits over California retailers websites' accessibility caught our eye. At the time the article was written, at least 15 bike shops in California had received emails and letters from a law firm threatening suits over their websites' compliance with the Americans with Disabilities Act and a California statute.
Seeing as how this could impact core shops we reached out to Travis Wilkerson, our resident go-to legal counsel for some background on this issue and below is what he shared with us.
In years past a lawyer who walked a tightrope of ethics was typically called an “ambulance chaser” which is a no-no in the legal field. After a quick buck at the expense of another these lawyers fed off the sometimes minor infractions of negligence of others. Fast forward to 2020, and the new ambulance chaser takes on a variety of forms, including those who large business websites for their lack of ADA compliance.
Any time a letter arrives from a law firm threatening a law suit it is a stressful time. When the letter is targeting a relatively new area of law and compliance that letter takes on a new level of stress. This new area of law came about years ago as those with disabilities became frustrated with their internet experience. With the internet becoming more and more prominent across all aspects of life world-wide, it became increasingly necessary for the ADA to be updated to include certain laws for disabled people. As such it required many businesses, such as those in the action sports industry, to update their sites to be compliant. Here is where the plot thickens as they say. We don’t have parameters as to what compliant means, and there is very little case law to give us guidance at this point.
So what happens when you get one of these threatening letters, or worse you are named in a law suit? If named in a law suit contact your legal counsel immediately. The complaint you received should have the necessary facts to put you on notice as to what the law suit pertains to, and specifically what you have done wrong in the eyes of the plaintiff. If the law suit doesn’t have sufficient facts, it is assuredly likely your legal counsel will file a motion to dismiss for lack of a claim on which relief could be granted. If there is sufficient legal notice then you have a few other avenues to explore.
The case law, and more importantly the damages, on this area of law seem to be very lopsided. By that I mean we know through he ADA what the fine is per violation, which is $4,000US. However we don’t have a really great understanding of how that is applied as of yet, but rest assured the fines for lack of compliance are not the problem. For anyone who has been sued I am sure you know that reasonable legal fees will be part of the damages for the plaintiff. Many of the cases decided on this issue of ADA compliance see damages in the hundreds of thousands, and in some cases edging over a million. Much of that is legal fees. What does that tell us? It tells us there are firms out there looking at your site right now, seeing if there is an ADA compliance issue, and then targeting you.
For example, let’s say your site is accessed by a blind person wanting to buy a new widget. For one reason or another they are not able to purchase the widget on your site due to site functionality. Further, let’s say that person is not disabled, but working at a law firm. At that point they will simply send out a mailer, or some other advertisement to blind people and get someone who is blind to run into the same purchase problem. Once they do, the law firm advises that person they should file suit. The firm pours tons of billable hours into the problem, way more than necessary, and you see how damages reach outrageous amount very quickly and easily.
The fix isn’t as simple. According to different web-design sources I spoke with the lack of guidance from the ADA as to what “compliant” means makes it difficult to make any site 100% compliant in every situation. However, having a conversation with your web-design team and looking into, or proactively searching for these possible hidden issues would be in every company’s best interest.
With so many people at home, shopping and researching online now more than ever, it is assured there will be more of these ADA website compliance suits in the near future. With so many other potential legal issues rising to the surface in late 2020 (and early 2021) it is well worth a little time and effort now to help curb your potential liabilities for these near frivolous suits.
By Travis Wilkerson
Travis served many years in the action sports industry working with different brands and most notably as Membership Director or SIMA before graduating from Whittier Law School. He now works at the Wilkerson Law Firm in Anaheim with his father/partner Jack Wilkerson.