By Alexander Novak and Isaac Cwibecker
Periodically, there are human interest stories about our brothers and sisters who are handicapped and cannot gain access to basement stores or offices in Brooklyn or ones with narrow hallways. These out-of-the-way stores are just inaccessible to someone in a wheelchair or on crutches. Many larger places of public accommodation are complying with the 1990 Americans with Disabilities Act (ADA) with a sense of duty to make their facilities more accessible and friendly to people in wheelchairs or with other disabilities. While the local Departments of Buildings mandate compliance with the ADA before issuing a new certificate of occupancy and while other landlords may be afraid of lawsuits for their failure to comply with the ADA, by and large, most businesses have both an economic interest in making their stores accessible to cater to the handicapped and others just want to do the right thing.
If a sense of good community ethics or altruism is not enough to ensure compliance, then many know by now that failure of a landlord or a store to comply with ADA comes with some potentially draconian and expensive consequences. The ADA requires all stores and offices open to the public be handicapped accessible into and around the establishment. Title III of the ADA requires all places of public accommodation, such as restaurants, retail stores, shopping centers, and doctors’ offices, to provide full access to their facilities for the disabled public. In 2015, four hard-of-hearing students and the National Association of the Deaf filed class action lawsuits against MIT and Harvard University for failure to provide handicapped students with equal access to these universities’ educational process. By 2019, both universities settled the cases, promising to make new accommodations for the students and agreed to a $1,575,000 payment of legal fees to plaintiffs’ lawyers. Most businesses understand these obligations apply to physical facilities, making sure they comply with ADA standards.
Websites And The ADA
What about a website? Is your website deemed under the law “a place open to the public?” What if you have no store, but only sell on Amazon—is this ADA applicable to you? The short answer is yes. Many do not realize that ADA accessibility requirements involve more than just compliance with architectural and structural physical facilities. Federal courts are enforcing ADA claims, penalizing companies for not having an accessible online presence. If the only way someone can access your page is through a website, then that website must be able to accommodate vision-impaired people. Most of these noteworthy lawsuits have been directed at large retail companies like Domino’s Pizza, the grocery store chain Winn-Dixie, and even Netflix. These deep-pocketed defendants refused to settle early on, and then went to trial and had multimillion dollar verdicts rendered against them. United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008) and Robles v Domino’s Pizza, LLC, 913 F3d 898, 903 [9th Cir 2019] and Farr v. Hobby Lobby Stores, Inc., CV 19-5949-DMG (ASX), 2020 WL 3978078, at *2 [CD Cal Apr. 29, 2020] and Williams v. McDonald’s Corp., 220CV1214TLNDBPS, 2020 WL 6561305, at *1 [ED Cal Nov. 9, 2020]. These are all well-known defendants.
However, just being a small website, with no brick-and-mortar store is no guarantee you will not be sued in federal court. It is happening now in New York and New Jersey Federal courts. Many people have never heard of the term an “ADA Internet troll.” They are not friendly, they bite, and you do not want to meet one face to face—it will cost you. These ADA trolls are law firms and handicapped plaintiffs who target a company’s website or mobile app with the threat of a lawsuit for not being ADA compliant. That is right. Just like you need an elevator or ramp in your building, special menus for the blind in your restaurant, you also need to have ADA compliant websites that will allow blind people to have your website’s content read to them. Some attorneys even created an entire industry out of pursuing such claims because the law clearly allows for the recovering of attorneys’ fees, expenses for bringing a lawsuit. These lawsuits have become a cottage industry with a handful of plaintiffs and their lawyers filing thousands of cases. Once sued, we tell clients to settle as fast as possible because their website broke the law—plain and simple. It is essential to know how to protect yourself before you get hit with a demand letter or, worse, a lawsuit.
Your company’s website must be accessible to the disabled and reading impaired so as not to run afoul of the ADA. So, besides calling a handyman to fix the railing and install a ramp to your retail store, you should be contacting a web developer to improve your web page. You need to have a virtual elevator for the disabled. The basics, for example, are providing alternate text for the visually impaired. This repair is not that expensive. It should be done not only because it complies with the law, but it is just the right thing to do.
The knee-jerk reaction to this might be that this sounds like a scandalous ploy by a guileful attorney attacking your company. However, with closer reflection, these policies are solidly grounded on core civil liberties we genuinely value. The ADA is a significant civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in mainstream American life. That right and protection extend to employment opportunities, purchasing goods and services, and participating in state and government programs. These rights and protections are now warranted to be applied to a virtual platform as well. Had the ADA legislation originally been introduced when iPhones and the internet were so prevalent, these concepts would not come as such a surprise; computers and being able to partake in “virtual” life are as important if not more important than participating in public events. Indeed, even more so, in the past ten months, with Covid-19 forcing many people to stay inside and spend more time (and money) online. Mainstream American life takes place via mobile shopping or anything involving the internet. Similar to why companies so easily understand why a ramp or alternate menu options are necessary for blind or deaf customers, the same is true for providing accessible websites and mobile apps for those customers online.
A great place to become more familiar with what’s required for your website or mobile app to be ADA compliant is to search the terms “WCAG” or “Web Content Accessibility Guidelines.” There are lots of companies that will guide you through text alternatives for non-text content, captions, audio and video media, and other sensory sequences that may be available, making the online experience more accessible. Analyzing and taking proactive measures to update your websites are a lot better option than taking a “wait and see” approach. Those companies do not charge exorbitant fees. Our offices are defending cases like this in New York and New Jersey. Frankly, we urge our clients just to settle and get compliant. Settling lawsuits often begin at $15,000 a pop. Even adoption of some of ADA compliant website policies, while they may not be a complete bar to overly zealous and litigious plaintiffs looking to sue anyone, will significantly fortify your company’s position to resolve and defend claims.
If you are already a defendant or you want to learn more, contact attorneys Alexander Novak or Isaac Cwibecker of Novak Juhase & Stern with offices in Cedarhurst and Lakewood at IC@njslaw.com” IC@njslaw.com.