Federal judiciary records for 2018 disclose that court filings under the Americans with Disabilities Act (ADA) Title III lawsuits are rising at a significantly greater pace nationwide. In mid-2018, a study prognosticated that if the number of ADA Title III lawsuit filings continued at the current rate, by the end of this year there will be at least 30% more ADA Title III lawsuits filed in 2018 than in 2017. And interestingly, this substantial increase is largely due to the surge in ADA Title III litigation focusing on website accessibility. California will likely retain its top rank position as the overall leader with respect to ADA Title III court filings, with a projected total of approximately 4,300 in 2018. But, in California, the high number of federal court ADA lawsuits primarily concern allegations of physical accessibility of public facilities. Only a nominal number of federal court ADA cases filed in California to date focus on allegations of website access for the disabled. But, that is certain to change. The growing trend of website access ADA lawsuits emanating from the East Coast (led by New York and Florida) will inevitably create a wave of litigation that will hit California federal (and state) courts in the foreseeable future.
Online retailers, restaurants and all manner of service providers in California with an online presence need to brace themselves for this new wave of ADA litigation implicating their websites’ compliance with ADA Title III accessibility requirements. A federal appeals court ruling issued by Eleventh Circuit in Haynes v. Hooters of America, LLC, is instructive on the traps and pitfalls involving these new, and sometimes novel claims, that focus on website accessibility. In the Haynes case, Mr. Haynes, the plaintiff, was blind and disabled under the ADA. In order to read and navigate internet websites, the plaintiff needed to use screen reader software, specifically, JAWS Screen Reader Software. Hooters, owns and operates a national chain of restaurants (best wings ever!) and utilizes a website located at www.hooters.com. Prior to filing his lawsuit in a federal district court in Florida, Mr. Haynes attempted to peruse and navigate the Hooters website. But he was unable to do so because the website was not compatible with his screen reader software. So, like every other red blooded American who relishes excellent chicken wings would do, Mr. Haynes filed a lawsuit seeking declaratory and injunctive relief. Specifically, Mr. Haynes requested that the Court order Hooters to (1) enter an order directing Hooters to alter its website to make it accessible to, and useable by, individuals with disabilities to the full extent required by Title III of the ADA, and (2) for an order directing Hooters to continually update and maintain its website to ensure that it remain fully accessible and useable by visually impaired individuals.
In the federal district trial court, Hooters prevailed on the ground of mootness since Hooters had already agreed in connection with the settlement of an earlier, virtually identical lawsuit, to conform its website to the Web Content Accessibility Guidelines (WCAG) 2.0. The trial court tossed the case because it found that there was no further additional remedy for the plaintiff to pursue. However, the Eleventh Circuit appellate decision reversed the trial court’s ruling in Hooters’ favor, on the basis that the prior third party settlement with Hooters did not moot Mr. Haynes’ lawsuit.
Given the absolute likelihood of the veritable tsunami of ADA website accessibility litigation that will sweep over California, in addition to attending to the technical aspect of running ADA compliant website platforms, in terms of attempting to limit exposure from ADA cases (both website inaccessibility litigation and claims involving accommodation to physical public facilities), businesses should act preemptively by considering the following:
- Settlement of ADA accessibility claims may not immunize the settling company from further liability from further claims.
- But notwithstanding the above, the Haynes appellate decision highlights the possible benefit of provisions in settlement agreements that gives the court continuing jurisdiction to enforce the settlement agreement.
- Also, the Eleventh Circuit’s decision will likely spur companies’ counsel to consider the advantages of a consent decree or a voluntary class action (both of which require court approval) as a better means of achieving the desired preclusive effect of a settlement.
But, on a purely practical operational level, business owners in California should focus on the necessity of confirming that their websites comply with the law. The disabled community includes people with hearing impairments and those who are unable to use a mouse and must navigate with a keyboard, touchscreen, or voice recognition program. Obviously, for those with hearing impairments, the problem will focus on whether the website features closed captioning, or adequate captioning for website images.
There are a lot of ADA Title III compliance issues for California businesses to chew on. But, the chicken wings are so delicious!