Businesses Struggle to Comply With Unclear ADA Website Requirements
OC Register - December 7, 2019
OC Register published version here
By Senator Ling Ling Chang and Kyla Christoffersen Powell
With a number of new landmark laws going into effect January 1,
California’s businesses face heavier burdens than ever before.
Businesses, both small and large, are struggling to comply with
policies such as the California Consumer Privacy Act and Assembly
Bill 5, the codification of the California Supreme Court’s
Dynamex decision.
Yet another issue looming large for business owners is a
resurgence of shakedown lawsuits under the Americans with
Disabilities Act (ADA) lawsuits – this time over website
violations.
The ADA was enacted in 1990 to prohibit discrimination against
accommodations for people with physical or mental disabilities –
a laudable goal. Unfortunately, it has too frequently been used
by profit-seeking plaintiffs’ lawyers to shake businesses down
with money demands under threat of lawsuits over minor technical
violations, such as a disabled parking sign that has faded to the
wrong shade of blue, or a door sign hanging slightly too high or
low.
Now we are seeing a similar abusive litigation dynamic for
businesses with an online presence. The absence of clear rules on
website accessibility is open season for plaintiffs’ lawyers to
exploit the ambiguities with lawsuits alleging violations of an
amorphous standard. Between 2017 and 2018, website lawsuits filed
in federal court under the ADA increased by 177%.
This staggering increase has led us co-host a number of public
workshops aimed at helping small local business owners understand
how best to comply with ADA requirements, including with their
websites. By equipping local business owners with the information
they need, they achieve better compliance rates and are better
positioned to protect against being sued. Unfortunately, without
clear rules for website accessibility, compliance is a guessing
game and businesses remain exposed to lawsuits.
This was the case for a local hamburger restaurant in Anaheim who
was sued on the basis that its online food delivery platform was
allegedly not accessible. Today, this small restaurant is facing
huge legal fees and an expensive settlement. Without clear
regulations, businesses like this have no way to protect
themselves.
Regulators have stated that “effective communication” must be
provided to those with disabilities but have not clearly defined
what it means. These ambiguities are further complicated by the
fact that communications disabilities are very individualized,
creating a moving target for compliance. The U.S. Department of
Justice needs to establish clear standards so that businesses
have certainty when they take steps to comply.
The cost of making a website compliant is also an important
factor that regulators should consider, particularly for small
businesses. The cost of an effective audit on a website can run
anywhere from $7,000 to $50,000 dollars depending on the
complexity of the site. This does not include the costs of
continually updating the website for compliance. These mounting
costs can be ruinous for some small businesses who end up closing
their doors.
We need to use the law to punish bad actors, not run honest mom
and pop shops out of business. Without clear rules, businesses
will continue to see shakedown lawsuits that take advantage of
this ambiguity. Establishing fair and reasonable rules will
ultimately promote adoption of accessible websites under the ADA,
which benefits consumers with disabilities and businesses alike.
By Kyla Christoffersen Powell and Ling Ling Chang
December 11, 2019
Senator Ling Ling Chang represents the 29th State Senate
District. Kyla Christoffersen Powell is the president and CEO of
the Civil Justice Association of California, an association which
advocates for balance in the legal system on behalf of employers,
businesses, and Californians who are negatively impacted by our
current legal climate.