A new analysis report predicts a surge in federal ADA website accessibility lawsuits could hit California companies in 2019. The Ninth Circuit ruled Domino’s website was bound to the ADA last month, making California’s federal courts more attractive to plaintiffs.
Only 10 website accessibility lawsuits were filed in California’s federal courts last year, according to a new report—but that number could rise in 2019, lawyers said.
A U.S. Court of Appeals for the Ninth Circuit ruling last month found Domino’s Pizza Inc.’s website must comply with the Americans with Disabilities Act, reversing a lower court’s decision. Kristina Launey, a labor and employment attorney at Seyfarth Shaw in Sacramento, said the ruling could make California’s federal courts a more attractive destination for website accessibility lawsuits. She co-authored the recently released analysis report of ADA lawsuit trends.
“The state courts were seeming more friendly to plaintiffs but, obviously, with now a Ninth Circuit opinion saying the ADA does apply to websites and mobile applications and having other language in the opinion rejecting due process and primary jurisdiction arguments, we do expect that we’ll probably see an increase in website accessibility lawsuits in federal court again in California,” Launey said.
Martin Orlick, a San Francisco-based partner at Jeffer Mangels Butler & Mitchell, and David Raizman, the Los Angeles-based co-chair of Ogletree, Deakins, Nash, Smoak & Stewart‘s disability access and Title III practice group, both also said the Domino’s ruling is likely to up the number of website accessibility suits filed in California federal court.
The lawyers said there’s been a nationwide rise in website accessibility lawsuits in recent years. Seyfarth Shaw’s report found there were at least 2,258 such cases filed last year, a 177 percent increase from 814 such lawsuits in 2017.
There are some ways California in-house counsel can prevent a website accessibility suit.
“I think the only responsible thing to do, and frankly the correct thing to do from a business perspective, is to incorporate website accessibility into the design of your website,” Raizman said. “From a litigation perspective, to have a plan that you are comfortable that you can execute it and put it in writing. So that if it is not complete by the time you’re sued, at least you can point to it and say you are on track or ahead of schedule in completing this plan and we do not require the court’s intervention.”
He and Orlick said companies should aim to comply with the Web Content Accessibility Guidelines 2.0, the international best practice standard. The guidelines include providing text alternative for non-text content, such as photos, and creating alternative ways for content to be communicated.
Launey said it’s also important for support staff to be trained on accessibility issues.
“Someone calls and says, ‘Your website isn’t working with JAWS [a screen reader].’ And the customer service agent says, ‘What’s JAWS?’ Little things like that,” Launey said. “Not knowing the terminology or the right questions to ask can really have a detrimental effect and might cause someone to go seek out a lawyer that they might not otherwise.”