suppliers hit by ADA website accessibility lawsuits | McDermott Will & Emery

The growing popularity of online shopping puts e-commerce businesses, especially those in the alcoholic beverage industry, in the legal crosshairs. Along with a recent surge in website accessibility cases, corporate complainants are sending advance warning letters to alcohol providers and, in some cases, even filing lawsuits in state court. or federal. These lawsuits, which are typically filed in California or New York, involve allegations that a provider’s website is not accessible to people who are blind, in violation of Title III of the Americans with Disabilities Act (ADA). and related state laws. In these cases, plaintiffs seek attorneys’ fees, damages (only under state law), and an injunction that would require the website to comply with Web Content Accessibility Guidelines (WCAG) standards, which have been widely adopted by courts and regulators.

To prevail in a website accessibility claim, plaintiffs must first show that a defendant is a private entity that owns, leases or operates a “public accommodation”. The courts, however, are divided on what it means for a website to be considered a public hosting location under ADA Title III. While some jurisdictions require there to be a “physical link” between the website and a physical store, other jurisdictions have allowed these cases to go forward against a company that only owns websites and does not does not own or operate any physical outlets.

In addition to establishing that the supplier’s website is a public accommodation, the applicant must meet certain jurisdictional requirements which will depend on whether the products can be purchased directly from the website as well as whether the supplier ships in the state in which the lawsuit was filed. Leveraging these defenses (among others) will be critical when trying to convince the plaintiff to withdraw their claim, file a motion to dismiss, or reach a speedy resolution on favorable terms.

Due to the increase in these website accessibility lawsuits, we encourage industry members to take a proactive approach:

  1. Train staff on accessibility requirements and WCAG standards.
  2. Test the website against WCAG standards (through independent consultants or user testing).
  3. Retain documentation of tests to demonstrate that users with disabilities can fully utilize the website.
  4. Assess potential areas of non-compliance with WCAG standards.
  5. Work with internal/external technical teams to implement accessibility features on the website.
  6. Develop an accessibility policy that informs users of the company’s accessibility practices.
  7. Consider including a link to the website’s accessibility policy on every web page, including a report option that is properly routed to resolve accessibility issues.
  8. Audit the website regularly to assess its level of accessibility (particularly after website updates).
  9. Engage legal counsel to minimize the risk of litigation associated with website accessibility issues, including whether the ADA is applicable to the Company’s website in light of the current state of the law.

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Edwin S. Wolfe