Under Title III of the ADA, it's illegal to discriminate against disabled persons "in the full and equal enjoyment of public accommodations." Applying that standard to websites is tricky because the 1990 ADA predated the Internet as a mass medium. U.S. Department of Justice officials announced in 2010 that they would provide guidance regarding the standards that websites would have to meet.
The expected 2016 release of the DOJ rule, however, was delayed by the Obama administration. Further, the Trump administration, which has made reducing government regulations a priority, withdrew the website proposal without explanation in January. Contradictory court rulings clouded the picture even further, according to attorneys.
"Website access lawsuits have been filed against defendants in almost every industry and market," emailed Kristen Perkins, an attorney with Hinshaw & Culbertson in Florida, which represents businesses targeted in these cases. "While retail establishments have had the most filings, those in the health care industry, education, restaurant and nonprofit sectors, in addition to others, have had to defend these lawsuits."
More than 800 were filed in 2017, according to Minh Vu, an attorney with the law firm Seyfarth Shaw, which defends companies targeted in ADA litigation. Classaction.org, which tracks class actions, estimates that 256 ADA website-accessibility cases were filed in federal courts between Nov. 28 and Feb. 26, with no sign of a slowdown.
"Businesses have been put in a very difficult place," Vu said. "You cannot wave a magic wand to make your website accessible. There aren't a lot of people who know how to do it correctly."
According to William Goren, an attorney from Decatur, Georgia, who specializes in ADA issues, many designers didn't consider people with disabilities when they created websites, which makes it more challenging to fix them after they're online.
Companies often need to add code to pictures on their websites to enable special browsers to describe images for people with impaired vision. They also need to provide text for videos so people with hearing problems can understand them. The cost to address the issues can reach several thousand dollars depending on a site's complexity and the extent of the issues that need to be addressed.
A bill pending in the U.S. House of Representatives would give companies with deficient handicap entrances and other architectural barriers six months to fix their problems before they can be sued. According to Perkins, owners of websites would benefit from similar consideration, but the proposed legislation currently doesn't offer any.
"This type of pre-suit requirement would be a very helpful way to avoid the unnecessary costs of litigation," wrote Perkins. "Clients with offending websites generally want to put fixes in place quickly to make their sites accessible to all people, given both the public policy concerns and the obvious business advantages to having your website work for everyone. The defense of these suits only makes curing access barriers to the impaired public more expensive."
Nike declined to comment. A spokesman for Hershey said the candy company was "committed to making our websites user-friendly," though he declined to discuss the ADA case. Officials from Burger King, which is part of Restaurant Brands (QSR); Lord & Taylor, which is part of Canada's Hudson's Bay; and Pandora didn't respond to a request for comment for this story.