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Opinion: Restaurateurs, Don’t roll over yet

You may have a defense to website accessibility lawsuits

Is the tide turning for restaurants struck by the wave of website accessibility lawsuits?  Following several plaintiff-friendly decisions and thousands of Americans with Disabilities Act Title III filings, a handful of federal courts across the country recently provided some hope to restaurant operators by granting motions to dismiss based on lack of subject matter jurisdiction, lack of personal jurisdiction, and lack of standing. 

For example:

Earlier this month, an Ohio federal court granted a credit union’s motion to dismiss for lack of standing because the plaintiff did not articulate any reason to revisit the website or state an intention to visit the website if the alleged barriers are remedied.

In July, a New York federal court dismissed claims against a franchisor of in-home care businesses — notwithstanding the fact that it derives some revenue from operations within New York — where the franchisor does not derive revenue from its website and the website has no transactional functionality.

In June, a New York federal court granted a supermarket chain’s motion to dismiss because it remediated the alleged barriers to access its website and committed to ensuring access in the future.  

In May, a New York federal court dismissed claims against a construction company because it is a Washington State corporation and only performs general contracting services in Washington, Idaho, and Oregon. 

In April, a Florida federal court ruled that a plaintiff failed to adequately plead his standing to sue a golf club since he lived more than 100 miles from the golf club and never visited it before, did not allege that he frequently travels near the golf club, and only identified an old newsletter on the website as being inaccessible. 

In March, a New York federal court found that a plaintiff lacked standing to proceed with her website accessibility claims because she failed to assert any concrete injury. The court warned: “[T]hose who live by the photocopier shall die by the photocopier.” 

In January, the Fourth Circuit upheld the dismissal of website accessibility claims against a credit union based on lack of standing because the plaintiff was not eligible for membership in the credit union. In so ruling, the Fourth Circuit suggested that the information a plaintiff claims he or she is unable to obtain must have some relevance to that plaintiff.

While these decisions are highly fact-specific and, to some extent, jurisdiction-specific, they offer a glimmer of hope to restaurants faced with website accessibility claims and potentially provide three roadmaps for defending against such claims. 

If, for example, your website is accessible by an objective measure and you are committed to maintaining accessibility, then the plaintiff’s claims may be moot.

If you have no connection to the state, then the court may not have personal jurisdiction over you.

If the plaintiff is sloppy and “cuts and pastes” his or her allegations (without appropriate editing and level of detail) or fails to allege a credible desire to obtain goods and services from your website or an intent to return to your website, then the plaintiff may lack standing.

We expect the explosion of website accessibility lawsuits to continue  — 2019 is on track to be another record year of filings.  It may seem to be an insurmountable task to avoid one (or even two) of these lawsuits. 

However, you can be proactive by taking measures to minimize your risk and mitigate your liability:

  • Retain a consultant (through counsel) to conduct a review of your website that includes manual testing.
  • Work with the consultant and your web developer to remediate any issues.
  • Document your compliance efforts and your plans to maintain compliance in the future.
  • Implement policies and train employees who update your website on best practices and the Web Content Accessibility Guidelines, or WCAG.
  • Negotiate provisions in your agreements with web developers and third-party vendors to protect you in the event of claims.
  • Post an accessibility statement on your website.
  • Purchase an insurance policy that covers third-party discrimination claims.

There continues to be uncertainty in this area of the law. Courts have reached divergent opinions as to the nature and scope of businesses’ obligations under Title III of the ADA, and the U.S. Department of Justice has not promulgated any regulations governing the accessibility of websites. 

Ironically, the Justice department created further confusion in response to a Congressional request for clarity by advising that public accommodations have “flexibility” in how to comply with the ADA.  Nonetheless, the best practice still is to achieve substantial conformance with WCAG 2.0 or 2.1, Level AA.

In June, Domino’s Pizza petitioned the U.S. Supreme Court to overturn a Ninth Circuit decision and determine for the entire country “[w]hether Title III of the ADA requires a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.” 

And in July, seven U.S. senators again urged the Justice department to provide greater clarity regarding these issues and website accessibility requirements under the ADA. 

Thus, the Supreme Court and the Justice department may choose to weigh in on these issues.  In the meantime, we recommend consulting with counsel, as it likely is only a matter of time before you are sued (or sued again).

Jason B. Jendrewski is a partner in the labor and employment practice at Fox Rothschild LLP in New York. He can be reached at jjendrewski@foxrothschild.com

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