Authors: Kathryn Moody and Valerie Bolden-Barrett
- Website accessibility lawsuits filed in federal court nearly tripled in 2018, partly driven by cases in New York that were allowed to proceed to discovery, according to a report compiled by law firm Seyfarth Shaw. Plaintiffs filed lawsuits under Title III of the Americans with Disabilities Act (ADA), alleging that they were unable to use websites that weren’t coded for assistive technology use, such as screen readers and other applications. The number of those lawsuits swelled from 814 in 2017 to 2,258 in 2018 and were filed in 14 states.
- The firm also said it expects the number of such lawsuits to drastically increase in 2019 following a 9th U.S. Circuit Court of Appeals ruling that overturned a lower court’s decision to dismiss a website accessibility lawsuit against Domino’s. That decision makes California federal court “an attractive venue for plaintiffs once again,” Seyfarth said.
- The states with the largest number of website accessibility lawsuits last year were New York (1,564), Florida (576), Pennsylvania (42) and Massachusetts (26).
When Seyfarth Shaw released the report last year, a total 814 lawsuits was considered a veritable flood; this year’s statistics confirm that the flood is far from over, and numbers will likely only get higher next year.
Title III of the ADA prohibits places of public accommodations from discriminating against people with disabilities. The U.S. Department of Justice’s (DOJ) Civil Rights Division defines “places of public accommodations” as businesses that are generally open to the public, including movie theaters, schools, restaurants, doctors’ offices, recreation facilities and other areas. Whether those places covered by Title III include virtual areas, such as job websites, is still being debated in the courts.
Robert L. Duston, a partner in Saul Ewing Arnstein & Lehr LLP, told HR Dive in a 2018 interview that organizations that don’t do business with the public aren’t affected by Title III. But he recommended that companies make sure their career pages are accessible, with a phone number for users to call if they need help. In an email to HR Dive, Beth Loy, principal consultant with the Job Accommodation Network, advised HR professionals to offer alternative options to online application systems with forms, such as telephone, e-mail or fax, to provide the information requested.
But the explosion in lawsuits should be a red flag for employers, regardless; inaccessible websites prevent individuals with disabilities from applying for jobs; with the talent shortage and the high volume of jobs that need to be filled, employers can’t afford to overlook a whole segment of job applicants.