You own a store and you have a website…does your website and mobile app have to be accessible with the Americans with Disabilities Act (“ADA”)?  This is a question that many retailers are struggling with especially in light of new aggressive litigation tactics taken by a single plaintiff represented by law firm in Pittsburgh who has been sending letters to companies and organizations across all industries, big and small, national chains and independents, threatening litigation under the ADA for a non-compliant website.  The law firm even recently sued the NBA over its website.

The question I receive is “what is this all about” and “what does it mean for my business?”

As background, the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation.  Typically, the issues arise in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms.  The regulations, known as the 2010 ADA Standards, governing accessibility of public accommodations do not address websites.  In September 2010, the Department of Justice, the federal agency that enforces Title III of the ADA, announced that it would issue new regulations to address website accessibility, but has since delayed issuance of these new regulations.

These proposed regulations are expected to provide formal agency guidance regarding retailers and other public accommodations’ obligations to make websites accessible to deaf and blind individuals.  Although it was previously thought that the DOJ would be issuing its new regulations in Spring of 2016, the DOJ has now said that new regulations would not be issued until 2018 at the earliest. Thus, the state of the law regarding the applicability of the ADA to company websites will likely remain in flux for the next several years.

Without regulations in force, it is unclear how a court would address a lawsuit over website accessibility.  Most of the cases that have been filed recently have not reached a resolution on the merits, and some have settled, which creates additional uncertainty for businesses.  And, arguably, for a business that has a website that does not provide any e-commerce or engage in the selling of goods and services on the website directly, or is a business that is a single or small store operator located far away from where the plaintiff resides, whether any lawsuit would proceed on jurisdictional grounds is also a valid question.

Adding more confusion to the mix, even though no regulations currently exist, the DOJ has emphasized that businesses should make websites accessible to the disabled, and has relied on a set of guidelines called the Web Content Accessibility Guidelines (“WCAG”).  Indeed some companies, such as H&R Block, have entered into a voluntary agreements with the DOJ to improve their website’s accessibility, despite that no formal regulations have been finalized.

The plaintiff law firms targeting retailers have relied on both the WCAG and Title III’s general obligations in their claims of website “accessibility failures.”  An example of an accessibility failure would be when non-text content on a website does not have an equivalent text alternative, or when a web page does not have a title that describes a topic or purpose.

Congress has recently stepped in to try and address the rising trend in these aggressive litigation tactics under the ADA by introducing legislation aimed to prevent these abusive lawsuits.

As a result of the incessant threats of litigation, and the lack of solid court authority on this issue, it may be prudent for companies to begin to test their website’s accessibility, in consultation with legal counsel to protect privilege, and, if necessary, implement changes designed to improve accessibility.   A retailer may also want to create or adopt a web accessibility policy consistent with the requirements set forth in the WCAG, and work with individuals to ensure training and compliance with the policies.  Or, a retailer may want to adopt a “wait and see” approach until there is more certainty on the legal viability of these claims and the DOJ’s regulations are finalized.