A recent wave of ADA class action lawsuits under the Americans with Disabilities Act (ADA) may affect your medical business website. In general, a “website accessibility” lawsuit alleges that a company discriminated against someone with a disability because the company’s website was inaccessible to that individual. The number of lawsuits has increased steadily since 2016, with each year seeing an increase over the year before. Approximately 10 federal class-action lawsuits were filed each day in 2020, and this trend shows no signs of slowing down

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In all these cases, the law allows plaintiffs’ attorneys to recover their fees, and determining whether a website is “accessible” is a vague and fact-intensive question that prolongs the litigation. These factors put defendants in a precarious position-they have to either accept a lower settlement or risk paying both sides’ attorneys’ fees after a long legal battle. Often, businesses choose the settlement option.

WHAT IS THE ADA AND HOW COULD IT APPLY TO YOUR COMPANY’S WEBSITE?

 

The ADA became law in 1990, before the widespread use of the internet. The law guarantees to individuals with disabilities equal access to all of the programs, services, and activities of a private or public company. The ADA is broken down into three “titles.” Title III, relevant here, prohibits discrimination on the basis of an individual’s disability in a place of “public accommodation.” The ADA provides a non-exclusive list of types of “public accommodations”, which includes sales or rental establishments. In the agriculture context, a “public accommodation” would include any business engaging in wholesale or retail sales or rentals, such as the sale of seed, crops, animal feed, or equipment.

Title III lawsuits were traditionally aimed at forcing businesses to comply with the ADA by making physical changes to their brick and mortar locations. For example, the classic ADA lawsuit involves suing a business to install a wheelchair ramp.

In 2016, plaintiffs’ attorneys began to sue under the theory that a business violates the ADA when its website is not accessible to individuals with disabilities. Most often these plaintiffs are vision or hearing-impaired and it is difficult or impossible for those individuals to navigate the website. While there are some outliers, courts have largely embraced the theory that a website can be a place of public accommodation such that the ADA applies.

WHAT ARE THE POTENTIAL PENALTIES/COSTS IF MY COMPANY’S WEBSITE VIOLATES THE ADA?

These cases most often are class action lawsuits with plaintiffs seeking their attorney’s fees and the court ordering re-design of the website in question. They can settle for $10,000 – $40,000. There is also the possibility for the DOJ to bring actions and seek damages, but we have not yet seen substantial enforcement from the DOJ.

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HOW IS A WEBSITE “ACCESSIBLE”?

An accessible website is one that can be meaningfully perceived, navigated, contributed to and operated in a similar way by a user with a disability as well as a non-disabled person.

For instance, most vision-impaired individuals cannot view pictures on a website. To make that picture accessible, a website can add “alt text” which is a text description of the photo. When paired with a screen reader (a program which reads digital text to vision-impaired users), the user then has an understanding of what the photo shows.  

Here is the example of lawsuit against Judith Hellman, M.D. PLLC

 

DUNCAN v. JUDITH HELLMAN,M.D. PLLC

Apr. 23rd, 2019


Name: Eugene Duncan

Filing date: April 23, 2019

State of filing: New York


Name: Judith Hellman, M.D. PLLC

Website: WWW.BIGAPPLESKIN.COM

Industry: Medical

Summary: Judith Hellman, M.D. PLLC owns and operates HellmanDermatology treating skin disease and providing cosmetic services.


  • Lack of Alternative Text (“alt-text”), or a text equivalent.
  • Empty Links That Contain No Text causing the function or purpose of thelink to not be presented to the user. 
  • Redundant Links where adjacent links go to the same URL address whichresults in additional navigation and repetition for keyboard and screen-reader users; and
  • Linked Images Missing Alt-text, which causes problems if an image within alink contains no text and that image does not provide alt-text.
  • Americans with