It is an all too familiar scenario for businesses: a lawsuit alleging the failure of a D2C website to be accessible to disabled members of the public. If true, the event violates the Americans with Disabilities Act (ADA).
In the case of a store, a restaurant, a hotel, or other physical businesses, compliance is more straightforward. A cursory Google search will lead to comprehensive architectural standards (and extensive commentary) published in 1991 and updated in 2010 by the U.S. Department of Justice. These standards, crucially, have the force of law; ensure your business complies with them, and you’ve complied with the ADA.
A significant amount of commerce is now, in fact, e-commerce, with a growing number of brands strategically focused on growing traffic and sales through their D2C website. As commerce has moved online, numerous ADA access lawsuits have followed — but legislation and regulation have not kept pace. In this void, court after court has held that businesses’ websites must be accessible to customers with disabilities without precisely defining how to achieve that mandate. So the question — how to comply — has become more complicated. Fortunately, Vorys has some proactive and reactive points for brands to consider.
In the absence of regulation, a private advocacy group has introduced a set of Web Content Accessibility Guidelines (“WCAG”). These guidelines are as complicated as they are comprehensive, but some relatively easy initial checks you can ask your IT team or hosting platform include:
Often, this includes hiring an accessibility consultant to work with and train your IT staff to make the website as accessible as possible and maintain it long-term. While complete accessibility may not be possible to achieve — as web pages may need to be regularly updated for the latest content — the more accessible features your website has (particularly on the main website pages), the more customers it can reach and the less likely it will be targeted by an ADA non-compliance lawsuit.
When facing a lawsuit, this is where an attorney well-versed in this area is very useful. Different federal circuit courts (those above the federal district trial courts but under the U.S. Supreme Court) impose different thresholds for a website to be held to the ADA’s accessibility requirements. Some circuit courts have held that any website selling goods or services to the public must be ADA accessible, while others require varying degrees of connection, or “nexus,” to a physical location to impose such requirements. While it generally makes business sense to reach as wide a customer base as possible by ensuring that your website is ADA accessible, knowing what is legally mandated by the applicable jurisdiction can help you defend an ADA lawsuit.
Vorys has played a comprehensive role in assisting eControl brands and other businesses of all types and sizes in navigating ADA compliance and defending noncompliance lawsuits. Our proactive strategy is to help businesses mitigate legal risk by considering ADA website compliance early on by issue spotting and connecting them with ADA accessibility professionals. If you’re sued for noncompliance, our reactive strategy is to evaluate legal defenses within your jurisdiction to identify the most cost-effective way to exit the litigation while simultaneously working to develop and implement a plan for a higher degree of ADA compliance — all in a privileged setting.
In short, if you have never considered ADA compliance for your D2C website, find yourself asking “How do I comply with the ADA?” or find yourself on the receiving end of an ADA lawsuit, reach out to George Stevens or your Vorys eControl attorney. We’ll be able to provide practical guidance and help mitigate legal risk.
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