Eaton & Van Winkle LLP Client Alert

  • A9R8A40

    Pennsylvania Firm Tries to Push Limits of ADA to Reach Corporate Websites;
    Companies Must Chart Best Course in an Evolving Legal and Regulatory Landscape

    Over the past few years a previously little-known law firm in western Pennsylvania has filed over 100 lawsuits against corporations for allegedly violating the Americans with Disabilities Act (the “ADA”).[1]  The twist is that most of these cases are not based on traditional ADA violations such as a failure to provide wheelchair access to “brick and mortar” retail stores.  Rather, many are based on alleged violations related to issues that are not expressly covered by the ADA, for example, the accessibility of ATM machines, point-of-sale systems and websites to persons having disabilities, such as visual or physical impairments.

    The most recent spate of such lawsuits, starting last summer, relate to alleged failures of websites to comply with the ADA, despite the fact that the ADA itself does not expressly cover websites.  Indeed, the ADA was enacted in 1990, when the Internet was in its infancy.

    The courts only recently started grappling with the application of the ADA to websites and, although in 2010 the Department of Justice (the “DOJ”) issued an Advanced Notice of Proposed Rulemaking (“ANPRM”)[2] regarding ADA website compliance, the ANPRM is short on specific guidance.  Moreover, the ANPRM has not yet resulted in final regulations – instead the DOJ has sought public comments regarding potential final regulations, and recently announced that those regulations are unlikely to be issued until 2018.[3]

    In the meantime, any company with a website (which is, of course, almost every company) is left trying to predict what the courts and the DOJ will do in this arena, and to interpret multiple existing voluntary guidelines.  For example, the U.S. Access Board (“USAB”), an independent federal agency, has developed what are known as the “Section 508” standards, which specifically apply to electronics and information technology developed for the U.S. government, and which include a section on websites,[4] but which do not expressly apply to websites created by corporations for other purposes.  Additionally, a private non-governmental organization known as the World Wide Web Consortium (“W3C”) has proposed guidelines that it calls the Web Content Accessibility Guidelines (“WCAG”).[5]

    Eaton & Van Winkle’s attorneys have experience helping clients navigate the changing landscape of ADA compliance and litigation.  We stand ready to work with your company’s legal, compliance and technology staff to address these issues. For further information, please contact Chris Colvin at ccolvin@evw.com or (646) 790-2987, or Robert Rubenfeld at rrubenfeld@evw.com or (212) 779-9910 ext. 606.

    ©  Eaton & Van Winkle, LLP, 2016.  All rights reserved.  This memorandum was prepared as a service to clients and friends of the firm to report on recent developments that may be of interest to them.  The information in it is therefore general, and should not be considered or relied on as legal advice.

    FOOTNOTES
    [1]
     http://carlsonlynch.com/index
    [2]  http://www.ada.gov/anprm2010/web%20anprm_2010.htm
    [3]http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html
    [4]  http://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards/guide-to-the-section-508-standards/web-based-intranet-and-internet-information-and-applications-1194-22
    [5]  http://www.w3.org/TR/WCAG20/