Is Your Ohio Business Website ADA Compliant?
If your Ohio business website is not ADA compliant it could make you a lawsuit target. Follow these guidelines to make sure you’re following the law.
Are you an Ohio business with a website? Do you have a brick and mortar location, or do you sell to out-of-state consumers? Congratulations, you must now comply with the Americans with Disabilities Act (“ADA”) requirements to make your website accessible to people with disabilities or be subject to the increasing rash of lawsuits seeking damages and attorney fees.
How must your website be compliant? The courts don’t really know, but they are sure willing to tell you that you must comply. Multiple standards have been asserted as “in compliance” with the ADA, including the Web Content Accessibility Guidelines (WCAG 2.0), but courts have regularly refused to explicitly adopt any specific standard of compliance as a minimum requirement for the ADA.
Instead, courts have sidestepped the question of “how does a website comply with the ADA” and instead focused on the question of whether there are articulable and comprehensible standards to which a website must conform, to which, somehow, the answer is yes. As restated by the ninth circuit regarding the ADA’s application to websites, “[a] statute is vague not when it prohibits conduct according ‘to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ ” Moreover, “[b]ecause the ADA is a statute that regulates commercial conduct, it is reviewed under a less stringent standard of specificity” than, for example, criminal laws or restrictions on speech. Therefore, the ADA would be vague “only if it is so indefinite in its terms that it fails to articulate comprehensible standards to which a person's conduct must conform.”
It’s also not going to help you if you have a business that is in a friendlier jurisdiction. A tremendous amount of these cases are coming out of a few firms in western Pennsylvania. Why does that matter? Because one of the judges in the Federal District Court of Western Pennsylvania has been incredibly friendly to Plaintiffs, refusing to dismiss cases brought by them at the early pleading stage, and in some cases going against established precedent in that Circuit. This includes cases in which, despite clear case-law to the contrary, businesses without any physical location whatsoever.
None of this is particularly helpful to businesses who are trying to determine what technical requirements their websites must have to comply with the ADA, or protect themselves if they DO get sued. There are, however, some general rules of thumb:
1) Make sure your website is compliant with WCAG 2.0 guidelines, including having text in your website capable of being read by a screen-reader.
2) Include indemnification clauses in your contracts with any party creating your website, and include a requirement that the website creating/maintaining party has sufficient insurance to cover a suit.
The easiest way to do this is to have WCAG 2.0 compliance built in to the original website, rather than attempt to strap on screen reading compatibility after the fact. If that’s not doable and you already have a website up and running, work to get your website as compliant as possible by bringing on an ADA consultant who can improve and monitor the website to ensure compliance.
At the very least, run an automated review of your website to ensure that you are meeting the WCAG 2.0 criteria. WCAG offers a list of free and pay-per-use products to conduct tests on your websites regarding compliance: www.w3.org/WAI/ER/tools/?q=wcag-20-w3c-web-content-accessibility-guidelines-20. Keep in mind that many of these programs are the exact same programs that Plaintiffs and their attorneys are going to use against your company’s website, so the fifteen seconds it will take you to run a compliance check could end up saving you tens of thousands in fees and penalties in the future.
Let’s talk about those fees. Some of you may be asking big “so what” on compliance. What’s the actual damage that will be caused by not fixing the website? The actual harm is that these cases are frequently resolved by the court by ordering a business to comply with the ADA in specific, and costly, ways. This includes spending tens of thousands of dollars on ADA audits, but also to pay all of the attorney fees incurred by the Plaintiffs, and all fees that will be incurred by the Plaintiff to monitor your website for compliance. That’s right, the Plaintiff’s counsel now gets to monitor your website and bill you for the privilege of doing so.
Also note that your general commercial liability policy is not going to cover a lawsuit on this issue. If you’re relying on your insurance policy to protect you without getting a separate ADA rider, you’re out of luck.
So what? You’ll fix the violations if you get called out on it. No harm no foul, right? Probably not. Only a single court has found that fixing the issues complained of during the case is sufficient to moot the alleged violations in a website accessibility case. In Diaz v. Kroger Co., a visually-impaired individual in New York sued the Kroger supermarket chain, which has no locations in New York. Kroger argued that Diaz could not seek the injunctive relief sought because the case had already been mooted by the actions taken by Kroger to make its website compliant.
Diaz opposed the argument, asserting that because a website was always changing that the issue of whether the website was compliant could never be mooted. The court agreed with Kroger, and found that because Kroger had already made the requested changes, that there could be no lawsuit.
But that is only one case. Your best bet is to never get to that spot, and take action to make sure that your website is ADA and WCAG 2.0 compliant before a lawyer in Pennsylvania decides that your company would make a good target for a lawsuit.
This article is meant to be utilized as a general guideline for ADA compliance. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
For questions, contact Cathryn Ensign at 216-287-2979 or by email at email@example.com.
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i Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 882 (N.D. Ohio 2018).
ii Robles v. Domino's Pizza, LLC, 913 F.3d 898, 906 (9th Cir. 2019).
iii Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) ).
iv Id. (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ).
vi Diaz v. Kroger Co., No. 18 CIV. 7953 (KPF), 2019 WL 2357531, at *2 (S.D.N.Y. June 4, 2019).