Protect Your Business From “Surf-By” Lawsuits

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This last year has witnessed the increase of lawsuits against businesses alleging their websites are not accessible by individuals with disabilities and violate the Americans with Disabilities Act (“ADA”) or its equivalent state law. These lawsuits are even more frustrating than typical ADA lawsuits alleging physical barriers at a business location. These so-called “surf-by” lawsuits are more frequently being brought by individuals who have never even visited your business, but instead simply visited your website from the convenience of their home. Unfortunately, the law on website accessibility is unsettled and changing, with courts throughout the country split on whether a website is a “public accommodation” under the ADA and, therefore, is required to ensure its website is accessible.

The Ninth Circuit has provided some protections to businesses in California, holding that for a website to be covered under the ADA, it must have a nexus to the goods and services offered at a business’s physical location. However, even if the ADA requires your business’s website to be accessible, what exactly it means for a website to be “accessible” is unsettled and evolving. There are no current laws or regulations defining what is required, and while the U.S. Department of Justice (“DOJ”) has been working on regulations for websites much like those applicable to buildings, those regulations stalled when they were placed on the “inactive” list earlier this year, all but guaranteeing that there will be no formal guidelines anytime soon. The lack of any formal guidelines puts business owners in the difficult position of determining whether they should invest resources to make their website accessible under accepted industry standards for web accessibility or wait until the DOJ publishes accessibility guidelines for websites like they have for buildings.

Unfortunately, the lack of formal rules on accessibility has not stopped private litigants and their lawyers, as well as the DOJ, from attempting to enforce the ADA against businesses through websites and mobile applications. These lawsuits can be expensive and a distraction from business operations, and business owners should remember that taking appropriate preventive measures is the best defense against any ADA access lawsuit, whether it be against your website or your physical locations. While no formal guidelines have been published, courts and the DOJ have cited with approval the “Web Content Accessibility Guidelines (WCAG) 2.0” as the industry-accepted standard for web accessibility and a model that websites should follow. The WCAG is a set of accessibly guidelines for websites published by the international organization World Wide Web Consortium (W3C).

In light of the growing number of these lawsuits, particularly in California, all business operating a website should consult with their web developer about what, if any, accessibility standards are being used on their website, and implement a plan to make the website accessible where possible. There are several easily identifiable fixes that can be made to make your website less vulnerable to a lawsuit. These include:

• Using “alt text” or text-based alternates to describe images or media content. This will ensure that there is a text-based description of the image that is accessible through a screen reader for individuals who are visually impaired or have certain cognitive disabilities.
• Ensuring the website can be navigated solely with a keyboard, as opposed to requiring the use of a mouse.
• Using clear, easy-to-read fonts that contrast from the background.
• Uploading documents in non-image based formats, such as HTML or RTF.
• Providing closed captioning for videos where possible, particularly if your website provides online classes or tutorials.
• Avoiding using flashing or moving graphics that are not capable of being read by screen readers.
• Having easily identifiable help or assistance options where individuals who are unable to access certain portions of a website can receive alternative assistance.

Taking a proactive approach to making your business website accessible to individuals with disabilities is the best deterrent to a lawsuit and will put your business in the strongest position to defeat a lawsuit. In the event your business is sued, you should retain qualified counsel as soon as possible so that an appropriate litigation and remediation plan can be developed.

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About Author

Nathan Okelberry
Associate, Fisher Phillips
nokelberry@fisherphillips.com
(213) 330-4449
https://www.fisherphillips.com

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