EXECUTIVE SUMMARY

Healthcare facilities are being sued by plaintiffs who allege that facility websites are not in compliance with the Americans with Disabilities Act. The lawsuits can be difficult to defend.

• One lawsuit has gone to trial and the defendant lost.

• Defendants can face copycat lawsuits.

• A plan of improvement in the first lawsuit can deter others.


Serial plaintiffs have been filing lawsuits under Title III of the Americans with Disabilities Act (ADA), alleging that private businesses — from hospitals to small restaurants — were not physically accessible to persons with disabilities, but now a new version of this lawsuit is appearing.

A new wave of ADA lawsuits has emerged in the past few years claiming that businesses’ websites are inaccessible to visually impaired individuals who rely on special software, says Adam Chotiner, JD, shareholder with Shapiro, Blasi, Wasserman & Hermann in Boca Raton, FL. Many large companies have already been hit with such a lawsuit, and hospitals are vulnerable to this threat, he says.

In 2017, more than 800 ADA website accessibility cases were filed in U.S. federal courts.

“ADA website lawsuits are particularly challenging because the U.S. Department of Justice has never issued regulations specifying the criteria or standards for determining whether a private business’s website is accessible. A couple of website cases have been dismissed on that basis, and some other judges have found that a business’s website does not count as a ‘place of public accommodation’ and thus is not covered by the ADA,” Chotiner explains. “But those trial court decisions — which are not binding on any other judge or court — are clearly the minority. Most judges confronting the issue have found that a business’s website can constitute a place of public accommodation provided the website has some nexus to an actual physical location.”

Only one ADA website accessibility case has gone to trial in the entire country so far, Chotiner says. That case was tried in 2017 in south Florida, and the defendant, a grocery store chain, lost and was ordered to make its website accessible, Chotiner says.

The judge adopted the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that the chain must meet to make its website accessible. Chotiner explains that WCAG 2.0 AA is a set of guidelines developed by a private group of accessibility experts and has been incorporated into many consent decrees and settlement agreements. It is the standard the U.S. Department of Justice referenced in its rulemaking process for state and local government websites under Title II of the ADA.

The judge did not consider the $250,000 cost of making the website accessible to be an undue burden, Chotiner says. The judge said that the cost ‘“pales in comparison to the $2 million [the grocery store chain] spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website.”

“Moreover, the judge found [the chain] responsible for the entire website’s lack of accessibility even though parts of the website are operated by third-party vendors,” Chotiner says.

The judge said “many, if not most, of the third-party vendors may already be accessible to the disabled and, if not, [the company] has a legal obligation to require them to be accessible if they choose to operate within website.”

The case is now on appeal at the 11th Circuit Court of Appeals, Chotiner says, and when the appellate court finally rules, it may provide some much-needed clarity to this area of the law.

The 11th Circuit recently provided guidance involving copycat lawsuits in which a company settles one ADA website accessibility lawsuit but then gets hit with another lawsuit before the company has implemented changes pursuant to the settlement of the first case, Chotiner says.

“In short, a company can still be sued if it hasn’t yet implemented accessibility changes pursuant to an earlier settlement, but the company’s chances of having the second lawsuit dismissed will be significantly enhanced if the earlier settlement requires ongoing monitoring/compliance and the court retains jurisdiction to enforce the settlement,” Chotiner says.

SOURCE

• Adam Chotiner, JD, Shareholder, Shapiro, Blasi, Wasserman & Hermann, Boca Raton, FL. Phone: (561) 477-7800. Email: achotiner@sbwh.law.