Don't Get Blindsided By This Website-Related ADA Lawsuit

QUESTION FROM: Jason in NY

“I’ve been served with papers that, I think, indicate I am being sued by someone I don’t know because my website discriminates against blind people.

They are seeking damages for no more than $25k.

Ever have this happen? Advice, other than “get an attorney?”

This is getting more stressful than interesting. Just received an email from an attorney, saying:

‘We are representing Fogo de Chao, TGI Fridays, Sushisamba, Red Robin (and 150+ other clients) on the exact same ADA Website Lawsuit that was filed against you. See Matter List below -- happy to share references

We have developed a very efficient strategy to address this lawsuit and prevent copycat claims.

Please let me know if you have a few minutes to discuss.

Thanks.”


HH ANSWER:

Let me first just say that this is very likely NOT a joke.

Although it might seem outrageous at first glance, there IS a legitimate complaint / argument by those who are visually impaired and want access to your website... however, unless a guest or neighbor has contacted you directly and voiced their inability to access your website – it’s more than likely a predatory “attorney” using the American Disabilities Act as “either salvos for civil rights or a way for lawyers to scrape the internet for a quick paycheck.” - but that doesn’t lessen the legitimacy of their claim.

It’s been well documented (since 2017) that thousands of small businesses have been targets of this type of litigation.

I believe the first one to help fan the flames was Bank Of America… I realize they’re far from being a small business but I think they settled out of court for something like $6 million or so which then brought other big defendants to the table like Safeway, Target, some airlines, hotels and now art galleries who were sued for preventing access their goods and services.

The Justice Department has not yet decided on standards or even guidelines for accessibility by the blind (as they have for other ADA compliance like widening travel paths in your restaurant to at least 3.5 feet wide, lowering countertops, making bathrooms wheelchair navigable and having a lift or wheelchair ramp at the egress and ingress to your dining room) nor have they clarified whether or not this ADA compliance should apply to all websites or just those that are linked to brick and mortar establishments.

There are some steps you can take to be sensitive to the needs of more guests while also mitigating the likelihood of being a target for unscrupulous law firms looking to pad their war chests and PR files.

The first step to resolution is in recognizing that not all fonts are able to be scanned and read by Text to Audio readers. Many, if not all, require clear legible fonts... and we all know from the challenge of choosing a style of font for our signs and websites, that there an inordinate number of available fonts out there.

The solution to your problem may be as simple as ensuring your website is set up so that someone who has difficulty separating like colors may be able to more easily read your content.

As most designers know, dark colored print on a dark or deeply saturated color background is difficult to read...just as light colored font against a light colored background is ...or very small and highly stylized / funky fonts like the Steadman font.

These are artistic aspects that make any media less visually friendly but for approximately 1.3 million Americans, it can make reading the content on your page absolutely impossible to read.

Adding clear and legible font to a clearly formatted and easily navigable website that employs audio to text captioning on any video content and textual descriptions of any photographs can go a very long way in the effort to avoid claims and/or beat these lawsuits.

Don’t think of these Title 3 laws as asking you to make your business and it’s design completely accessible to guests who are completely blind - or as shifting the onus onto you to make 100% of the content you share online to be disseminated to the blind...as much as the expectation being you making a legitimate effort to accommodate those who are blind or visually impaired (i.e.,color blindness) by providing basic access to the majority of relevant content.

It may initially come across as a legal hoop to jump through but - for those of us in the hospitality industry – we recognize ADA Title III as offering up a perspective that provides an opportunity for us to serve more guests.

According to several articles I’ve read re: the demands of disabled users, a website can be much more to accessible if it isn’t mostly compiled with photos (think Pinterest) and videos. I.e., text is your friend here - as it is the medium most accessible to your sighted, visually impaired AND hearing impaired guests.

As far as which fonts are compatible with text-to-audio software, I can’t say - but I’d first invest my time and energy in changing a scripted or funky font to something more basic before I invested in a consultant, compliance assistance company or a web plug-in that costs $400+/mo to assist with compliance.

It genuinely appears as though these cases are being brought to change the industry and amend/clarify existing legislation more than they are trying to create a legal shakedown of mom and pop operators and provide an on ramp to riches for predatory lawyers… but vultures WILL circle.

“Though the ADA was enacted before websites were ubiquitous, many courts have interpreted the term ‘public accommodation’ in the act’s Title III to encompass Internet companies. But clear rules for applying the ADA to websites have yet to be established...At a minimum, before bringing a lawsuit, accessibility claimants should be required to provide notice of alleged violations and give businesses a reasonable opportunity to comply.” - Mark Pulliam | LA Times

Forcing small businesses to comply with legislation without any clearly defined rules, regulations and/or guidelines is not only irresponsible - it’s an affront to our entire legal system...but, until we can clarify or amend the law, we need to do the best we can to cover our asses and prevent the expense of frivolous litigation filed by unscrupulous lawyers - from putting us out of business.

“It’s blackmail, that’s really what it is,” said Mark Borghi, the owner of Mark Borghi Fine Art, who was sued in the “M” batch.... especially since the disability law says defendants can be liable for plaintiffs’ legal fees, [which means] businesses also usually negotiate a cash settlement to get the case dropped to avoid a massive legal bill.” - Elizabeth A. Harris | New York Times

Some site creators like WordPress offer free page reader plug-ins while others charge up to $150 per page.

I’ve read some reports of businesses spending upwards of $50,000 in order to make their websites compliant.

In short, you should spend some time (and spend a couple of dollars) now because you never know when one of these drive-by lawsuit filing opportunists indiscriminately catches you in their crosshairs.

UPDATE: OCTOBER 7, 2019 - Add Domino’s Pizza to the list. The ruling cited that Domino’s failed to “design, construct, maintain, and operate its [website and app] to be fully accessible to and independently usable by [the plaintiff] and other blind or visually-impaired people,”

According to the National Law Review: “The Court clarified that the ADA applies to the services of a place of public accommodation, not merely services that occur in a place of public accommodation, noting that Domino’s website and app facilitated access to delivery or pickup at Domino’s brick-and-mortar location, which was itself a place of public accommodation. Thus, the Court found a sufficient enough nexus between Domino’s website and app and its offered goods and services to determine that the ADA did indeed apply.”

So…if the ADA does not apply to websites that are not linked to physical locations that offer public access to goods and/or services - at least Ghost Kitchens have one last thing to worry about.

In short, if a company’s website or app offers customers a direct link to services offered at a physical location, the ADA applies, and the company should include ways to make the website accessible to disabled persons…even if it’s merely a posted hotline / phone number for visually disabled customers to call in the event their reader software is unable to translate your web page(s) - which is what Domino’s did to temporarily remedy their non-compliance.

Unlike their large multi-unit independent and chain counterparts - A blow like this is enough to put smaller “Mom & Pop” restaurants out of business or force them to settle and suffer serious financial hardship.

Many say that these laws have been on the books for decades but without notice, DOJ enforcement or standards in place to assist businesses seeking compliance - these rulings seem more like an affront to small business ownership than anything. My only hope is that the NRA (or someone) pushes for these regulations to go the way of the federal law that mandates the clear dissemination of calorie counts on menu items and initially apply only to chains with 20 or more locations.


Good Luck! & Keep me in the loop,

Josh