In the old days in New York City, if you wanted private for-hire ground transportation, all you had to call was call a car service call center. Some had easy to remember telephone numbers and others you could reach by calling the 311 operator or by utilizing the telephone book. With the advent and proliferation of the internet, most transportation entitles created websites by which to advertise their services. Rapid advances in technology made booking transportation over the telephone a bit outdated and time consuming. Transportation entities then started to integrate their website with a booking engine/booking platform by which people seeking transportation for-hire could check availability and costs and make bookings at lightning speed. Offering a great user experience online became the new expectation. Despite the advent of the smartphone application by which to book transportation for-hire, many car services still provide the public with the ability book private transportation on their websites.
The ADA was enacted in 1990 to prohibit discrimination and ensure equal opportunity to people with disabilities. This applies to State and local government services, employment, commercial facilities, transportation, and places of public accommodation, which are essentially private entities that affect commerce. These laws can be enforced by the Department of Justice (“DOJ”) and through private lawsuits. An unresolved legal issue has recently arisen which has led to uncertainty in the law. Uncertainty in the law almost always leads to costly litigation because a company does not clearly know what its legal obligations are. People with disabilities should be able to easily access the Internet, but to accomplish this, the DOJ should have issued regulations. It issued regulations for State and local governments to know what it must do to become compliant with the law, but the DOJ did not issue regulations that would apply to private business.
The lack of regulations has led to the absolute worst-case scenario. People with disabilities have not been served since most companies are unaware this is an issue. Most companies do not even realize this is a problem to consider and resolve until they receive a demand letter from a lawyer or are served with a lawsuit. This leads to a scramble to get compliant. Unfortunately, it can take up to a year to do so depending on the complexity of the website. Transportation companies have relatively complicated websites because customers are presented not just with information about the company, but are provided with a customized web reservation site that is often an extension of main website. Private, customized portals are often created for corporate accounts or large groups. These portals can also accept marketing and/or promotional codes helping to increase both customer loyalty and reservation volume.
At present, a company website that is purely informational or educational in nature is likely beyond the ADA’s accessibility requirements. But a website that sells goods or services directly to the public may be regarded either as a sales or service establishment in its own right, or as a service of such an establishment, and thus covered by the ADA. On the whole, it is hard to argue that a car service that provides a website booking engine by which the public can utilize to arrange for transportation does not engage in some form of commercial activity. Thus, it is safe to assume that car service websites are subject to the ADA.
The most common allegation in a Website Accessibility Lawsuit is that the company website is inaccessible to visually-impaired customers (some cases now involve mobile apps). Such customers often rely on screen-reader software like JAWS or NVDA to interact with and access a site's content. If the website is not compatible with this or similar screen-reader technology, most visually-impaired customers will not be able to use the website.
Meanwhile, plaintiffs’ attorneys across the country are taking advantage of the confusion. More than 260 website accessibility lawsuits were filed in 2016, and significantly more were filed by the end of 2017. But these numbers do not even begin to cover the cases that are settled pre-litigation.
As stated above, the DOJ has not issued regulations that apply to private businesses and the law remains unclear because there is a split among the federal courts as to whether the statute applies only to physical structures. According to the more narrow interpretation adopted by several courts outside of New York, a disabled person is entitled to the “full and equal enjoyment” of goods and services only if they are offered at a physical location. Thus, if a business operates exclusively through the internet, without any physical location where customers interact with the business, the ADA’s mandate for accessibility does not apply. Most transportation companies in New York have an office, but they do not offer their services at a physical location where a member of the public can come to book transportation for-hire. The below is just a short indication of how the courts have been ruling on this issue. It has not been uniform and certainly not favorable to businesses in New York.
In 2017, defendant Bang & Olufsen obtained a dismissal in a Florida court because the plaintiff failed to establish a nexus between the company website and its physical locations. In California, a judge dismissed a website accessibility suit against Dominoes, finding that the company had met its ADA obligations by providing a 24-hour toll-free phone line to assist visually-impaired customers. The judge further ruled that to require website accessibility without meaningful administrative guidance would violate Dominoes' due process rights. Yet three months later, another judge in the same federal district ruled otherwise in a case involving Hobby Lobby. Similarly, in the October 2017 Dave & Buster case, the court recognized that providing a disability assistance telephone number may be an alternative means to comply with the ADA, but the court refused to dismiss the lawsuit, in part because it was unclear if the ADA notice and phone number itself were accessible (i.e., could be read via screen-reader software).
On the other hand, the New York Court have been quite favorable to plaintiffs. In July, 2017, the U.S. District Court for the Southern District of New York in Marett v. Five Guys Enterprises, issued a decision directly speaking to the applicability of Title III of the ADA (Title III) to websites, denying Five Guys’ motion to dismiss, and holding that Title III does indeed apply to websites. Facing a class action lawsuit brought by serial plaintiff, Lucia Marett, Five Guys sought to dismiss the claim that its website (which, among other things, allows customers to order food online for delivery or pick up at its brick and mortar stores) violated Title III and related state/local statutes because it is inaccessible to the blind, on the grounds that Title III does not apply to websites and, even if it did, the case was moot because Five Guys was in the process of updating its website to provide accessibility. The Court rejected Five Guys’ arguments. Citing both the text and the broad and sweeping purpose of the ADA, the Court held that Title III applies to websites – either as its own place of public accommodation or as a result of its close relationship as a service of Five Guys’ restaurants (which the court noted are indisputably public accommodations under Title III). Further, the court was unmoved by Five Guys’ ongoing efforts to make its website accessible because they had yet to successfully do so and there was no absolutely clear assurance that further accessibility issues would be avoided.
In August 2017, Judge Weinstein of the Eastern District of New York denied retailer Blick Art Materials' motion to dismiss a website accessibility lawsuit under the ADA. The court found that Blick's website was subject to the ADA, even for the goods and services that it sold independently of any physical retail location. The judge rejected Blick's arguments that the court should wait for DOJ guidance on a technical website accessibility standard, and that it would violate Blick's due process rights to require its website to comply with the ADA without any administrative standards or regulations.
It seems clear that many of the courts that have considered these issues have been unsympathetic to businesses, and plaintiffs are taking advantage of the reality that many businesses are unaware of their obligations under the ADA and do not have fully accessible websites. Website accessibility lawsuits are proving to be challenging to defend and expensive to resolve. If a court finds that a website is inaccessible, it can order the business to make its website accessible and to pay the plaintiff’s attorneys’ fees, costs, and expenses. Additionally, in certain jurisdictions, the court can order the business to pay the plaintiff monetary damages and/or civil penalties under state and/or local law. Many courts and the DOJ have viewed the privately developed Web Content Accessibility Guidelines (WCAG) 2.0, Level AA, as the de facto standard for ADA compliance. Accordingly, transportation entities who offer a web booking engine to their customers should consider reconstructing or redesigning their websites in compliance with this standard. Even if a business successfully defends such a claim, the expense of litigation may exceed the cost of compliance.
The good news is that the United States House of Representatives recently passed a bill aimed at stemming the floodgate of ADA lawsuits brought by a small number of serial plaintiffs. The bill, the ADA Education and Reform Act of 2017 (H.R. 620) would impose a notice requirement and would allow businesses a grace period to cure alleged accessibility barriers before a lawsuit could be filed. Although not specifically aimed at particular type of ADA lawsuit, the reforms in the bill may provide relief from the large number of website accessibility lawsuits filed over the past few years. The bill will now move to the Senate. Regardless of whether the bill ultimately become law, it reflects a growing acknowledgement that private lawsuits under the ADA have reached a critical mass and until certain reforms are enacted to limit attorney driven suits, it is important for all businesses to understand the need for ADA compliance and the pitfalls posed by non-compliance.