QSR website access suits surge: Are you prepared?
By Brian Cole/Employment litigation lawyer
Over the past year, the number of website disability access lawsuits has surged across all industries, but the problem is particularly intense in the food service industry and QSR sector suits are well represented. In short, being in this business today means knowing the law and its requirements when it comes to website accessibility, lest you leave your brand highly susceptible to a court case.
|Brian Cole II|
First off, understand that website disability access lawsuits or web access lawsuits allege that a consumer-facing website is discriminatory because it contains certain barriers that prevent access to individuals with visual, auditory or other disabilities. This type of action is brought under Title III of the Americans with Disabilities Act (ADA), as well as under the stipulations of any state's non-discrimination laws, like the Unruh Civil Rights Act in California.
The costs associated with these lawsuits can be significant, as plaintiffs seek legal remedies that will bring inaccessible sites into compliance, along with any number of attorneys' fees. Additionally, certain state non-discrimination laws — like the Unruh Act — also add minimum statutory penalties.
The surge in suits is upon us
The number of filed web access lawsuits is booming, from just 60 federal lawsuits filed in 2015, to this year when the number of such suits is on pace to break the 1,000 mark. And note, that number also includes numerous putative class actions.
Of these federally filed lawsuits, the largest number of cases are coming from New York, Florida and California. But keep in mind that these filed cases are only a portion of the action in this area since companies often settle or resolve matters upon receipt of a demand letter before a complaint is actually filed. Likewise, a lot of legal action in this area is taking place at the state level in those courts.
What are current website disability access requirements in the U.S.?
There is no simple answer to that question because it's not currently clear. In 2010, the U.S. Department of Justice in an Advanced Notice of Proposed Rulemaking said it would issue regulations on website accessibility standards for public accommodation websites. But, to this date they have not been issued. Likewise, in late 2017, the Justice Department actually publicly abandoned its rulemaking on website accessibility.
While it remains unclear whether the federal agency will issue regulations, the matter has now gained the attention of the legislature. On June 20, 2018, a bipartisan group of 103 members of the U.S. House of Representatives endorsed a letter to Attorney General Jeff Sessions. That document urged the Department of Justice to publicly state that private legal action taken under the requirements of the Americans with Disabilities Act related to websites, is unfair and violates basic due process principles when no clear final rule on website accessibility standards exists.
A place to start for QSR websites
Despite the current lack of defined regulations, many companies are now looking at the website accessibility standards delineated by the Web Accessibility Initiative of the World Wide Web Consortium for guidance and benchmarking. In 2008, the international standards organization published version 2.0 of its Web Content Accessibility Guidelines.
Those guidelines — though not the legal standard for public accommodation websites under Title III of the ADA or Unruh Act —are the standards the Justice Department has used in settlements. They are also the legal standard for certain federal agency and air carrier websites.
In fact, many web access lawsuits have directly pointed to those guidelines as benchmarks in allegations that a business's website is not accessible, and thus discriminatory. The guidelines also provide specific criteria for an accessible website, including elements like embedded alternate text that can be used with a screen reader for the visually impaired, as well as font size, contrast and captioning features.
Likewise, just this June 2018, the guidelines were updated with 17 more success criteria to account for technological changes.
6 actions QSRs can take now to avoid lawsuits later
• Familiarize yourself with Web Content Accessibility Guidelines 2.0/2.1 from Web Accessibility Initiative of the World Wide Web Consortium.
• Determine whether website modifications would improve accessibility for disabled individuals.
• Make needed modifications by prioritizing areas used most by customers.
• Consider including a website accessibility statement onsite, referring those with disabilities to other communication options, like phone numbers to obtain website information.
• Include proficiency in the Web Content Accessibility Guidelines 2.0/2.1 in scope of work considerations for website vendors/designers.
• Consider a website audit or testing by a web accessibility expert.
Brian E. Cole II has extensive experience defending California employers in employment litigation involving wrongful termination, discrimination, harassment, retaliation, and wage and hour violations. In addition, his experience includes defending companies of all sizes against burgeoning claims of website accessibility.
Inset photo: Provided
Feature photo: iStock