Most business owners are familiar with the Americans with Disabilities Act, or ADA, and the requirements that Act imposes. The ADA ensures that goods, services or other activities provided by places of “public accommodation” are equally accessible to persons with disabilities. Americans are used to seeing physical accommodations such as reserved parking spaces, wheelchair accessible ramps and bathrooms.

Although the federal government can enforce the ADA directly, compliance with the ADA is most often enforced through private litigation. A person with a qualifying disability can bring a lawsuit against a business or organization claiming denial of equal access to the business. For example, if a clothing retailer does not have wheelchair accessible fitting rooms, a patron in a wheelchair might claim he or she was denied equal access under the ADA.

The digital age and rise of internet-based business has spawned an entirely new threat of ADA litigation. Instead of violations in the physical world, these lawsuits allege denial of access to goods and services offered on websites. The most common are brought by people with visual disabilities. Let’s go back to our clothing retailer. In addition to a physical store, this shop also has a website where customers can purchase clothes directly. If the website does not have built-in software features that allow for a visually impaired person to use the website, that business risks becoming a defendant in an ADA lawsuit. The threat is real. Since over 2015, over half of the top 500 retailers have been sued on the grounds that their websites or mobile applications were not ADA compliant.

In most cases, these ADA lawsuits do not permit recovery of money damages. Even so, the limitation is small comfort since the ADA does allow for an award of attorneys’ fees which often reach significant amounts. Moreover, some states, like California, have legislation similar to the ADA that does allow for money damages. Because an award of attorneys’ fees can only be recovered after the lawsuit is actually filed, businesses almost never receive any advance warning or opportunity to make the requested changes outside of court.

Although there are steps that businesses can take when faced with an ADA website-based lawsuit, avoiding a lawsuit in the first place is preferable. Given the rise in these types of lawsuits, many companies now offer services to help businesses to make their web presence ADA compliant.  With proper counsel, the risk from these lawsuits can be mitigated in a sensible and economic manner.

Written by Attorney Jackson Hendrix, jhendrix@hgplaw.com.

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