The Voice of the Underdog®
Recently, some of our clients have been contacted by law firms asserting their websites are not accessible according to forthcoming rules under Title III of the Americans with Disabilities Act (ADA). Title III covers “nondiscrimination on the basis of disability by public accommodations and commercial facilities.”
So, how does this affect your website?
If your company conducts any form of e-commerce the ADA is going to require that it be modified to accommodate individuals with disabilities. This is a bit of a head-scratcher because the new rules have yet to be issued. In fact, the ADA has been deliberating on this matter and developing its new compliance rules for nearly a decade and last year announced those new rules wouldn’t be issued until sometime in 2018.
“In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process …” – ADA Title III News & Insights, November 2015
However, that hasn’t stopped law firms around the country from seizing what they’re forecasting as a tsunami of opportunity. And, as the promised date for the new rules approaches things are beginning to heat up as anticipated. If you are not aware of this development you can become familiar with the topic quickly by reading, “New Area of Focus in ADA Compliance,” and “Federal Lawsuits Spike; Community Banks Get Demand Letters.” For a little more depth on the topic you might also want to read, “The Focus of The ADA Turns To Websites In The Digital Age: Is Your Website Compliant?”
“As we predicted, website accessibility lawsuits and threatened claims have become big business for the plaintiffs’ bar. More law firms are filing lawsuits or sending demand letters alleging individuals with disabilities are denied access to a business’s goods and services due to inaccessible websites than ever.” – Minh Vu, SeyFarth Shaw, “Federal Lawsuits Spike”
Class Action Lawsuits on the Rise
In an effort to create first-mover advantage several law firms are working to assemble federal class action lawsuits ahead of the rules update. It’s a fair bet based on recent legal activity that community banks and large retailers are prime targets for these lawsuits. Others will certainly follow.
“In the meantime, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”. This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other, established, regulatory requirements with which the business must comply upon risk of violating established laws. This external pressure has only increased of late—we have seen plaintiff’s lawyers initiated a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities.” – Seyfarth Shaw, LLP, November 2015
Proactively review the matter of ADA compliance with your legal counsel, IT department, marketing communications team and certainly your web development partners at a minimum. The issue isn’t going away, and the Department of Justice takes a dim view of those companies that violate any aspect of the ADA.
According to Chain Store Age, the “DOJ fines have increased, with the first violation now at $75,000. All subsequent ones are $155,000 each. And there is the potential for compensatory and punitive damages.” The lawyers are lining up and the punishment is ready to deliver, so it would appear the stage is set for the other shoe to drop whenever the ADA gets around to dropping it.
Mike Sullivan is president of LOOMIS, the country’s leading challenger brand advertising agency. For more information on challenger brands check out some of our recent blog posts:
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