07/27/2021

ADA Liability Extends to Websites: Law Previously Applied to Roll Up Doors and Parking Lots Now Applied to Websites

By Scott I. Zucker, Esq.
Partner,  Law Firm of Weissmann Zucker Euster Morochnik & Garber P.C

Previously we've discussed the potential liability to self-storage owners under the Americans with Disabilities Act (ADA) which requires that parking lots and roll up doors must be accessible to the disabled. Recently, the same law has been used to sue business owners for accessibility violations relating to the websites they use for their customers.

It turns out that claims are starting to be made by plaintiffs' lawyers against both large and small businesses that their websites fail to comply with the accessibility requirements found within the ADA. Specifically, these lawyers are applying website accessibility standards and guidelines that have existed for state and federal governments but are only now being applied to private businesses. Specifically, the argument is that procurement standards found in the Federal Acquisition Regulations (FAR) which address the purchase of electronic and information technology systems by government agencies should apply equally to websites being used by private businesses. Although it has been a long-standing practice by state and federal government agencies to try to create their websites with consideration for people with physical, sensory or cognitive disabilities, this is the first time that those standards are being extended to the private sector and certainly the first time that businesses are being sued under the contention that the failure to meet these standards constitutes a violation of the ADA. This argument has been strengthened by the issuance of website guidelines as published by the Web Accessibility Initiative of the World Wide Web Consortium. These Web Content Accessibility Guidelines (WCAG) which were first published in 1995 were reissued in 2008. The Guidelines suggest that websites should be accessible to the disabled and offer guidelines for accessibility design such as alternatives to auditory and visual content, clarifying natural language usage, providing clear navigation mechanisms and creating tables that transform "gracefully". The guidelines include as well suggestions for providing captions for videos with audio, providing text alternatives for non-text content, using larger font size for content, not using presentations that rely solely on color and not limiting accessibility to the keyboard only.

All of these suggested guidelines help to create a basis for litigation claims which are now being used by the plaintiffs bar to suggest that businesses that do not offer these accessible features create barriers for use by disabled customers. Generally, as has been asserted, business websites that do not provide accessibility to disabled users constitute discriminatory business practices. As more and more self storage operators tum to technology, such as on-line rentals, remote leasing and mobile payments, these systems must take these established guidelines into consideration so as to avoid the risk of ADA claimed violations. This is certainly a new area of the law that is just now being tested in the United States. However, these claims have already been brought in other countries under a similar discriminatory framework. It would be a "best practice" to use these guidelines to confer with your website vendors and to approach website development with these guidelines in mind. At least if you are notified of a claim, you'll have a good faith defense that you were endeavoring to comply with the law.

[This article was originally published in Scott's "Legal Monthly Minute" Newsletter]

Scott Zucker is a partner in the law firm of Weissmann Zucker Euster Morochnik & Garber P.C. in Atlanta, Georgia. Scott specializes in business litigation with an emphasis on real estate, landlord-tenant and construction law. Scott is a frequent lecturer at national conventions and is the author of Legal Topics in Self Storage: A Sourcebook for Owners and Managers. He is also a partner in the Self Storage Legal Network, a subscription-based legal service for self storage owners and managers. Scott can be reached at 404-364-4626 or at scott@wzlegal.com.