Websites and Apps: the New ADA Lawsuit Frontier?

This summer brought a rise not only in temperatures, but also in developments concerning businesses’ obligations to make their websites and mobile applications accessible to individuals with disabilities. Business owners and operators may want to pay close attention to these developments to ensure their businesses comply with their obligations and avoid liability.

The Americans with Disabilities Act (ADA), and its state law counterpart, the Arizonans with Disabilities Act (AzDA) require businesses that offer goods and services to the public to make their goods, services, and facilities accessible to persons with disabilities.

As businesses have made increasing use of the internet and cellular phone applications as an additional means of attracting customers to their products, services and locations, individuals with disabilities and advocacy groups have correspondingly filed (and sometimes won) cases claiming that websites and applications should have accessibility features that enable their use by persons with impairments including limited vision or blindness, seizure disorders and dyslexia.

There have been several new developments concerning website and mobile application accessibility over the past few months, including:

• The Arizona Legislature has amended AzDA in an effort to curb the activities of serial litigants, including exempting websites from the accessibility requirements under AzDA. As a result, Arizona businesses cannot be sued under the AzDA for accessibility issues related to their websites.
   
• A Federal District Court in California has ruled that businesses cannot be sued under the ADA for failure to comply with website and mobile application accessibility guidelines unless and until the Department of Justice issues final guidelines that provide the accessibility standards businesses should follow. That ruling has been appealed to the Ninth Circuit Court of Appeals, which may issue a decision that will impact whether businesses throughout the Ninth Circuit (including Arizona) may be sued for website and mobile application accessibility under the ADA.
   
• The Trump Administration issued its Agenda of Regulatory and Deregulatory Actions, placing guidelines for website accessibility under the ADA on a list of “inactive” items. This action is largely seen as a sign that these guidelines will be delayed indefinitely. In conjunction with the Federal ruling discussed above, plaintiffs’ ability to sue on website accessibility issues may be significantly curtailed in the long term.
   
• Theresa Brooke, an ADA serial litigant has filed a series of lawsuits in Arizona against hotels with online reservation platforms, alleging that the online reservation systems violated the ADA because they did not include mechanisms to specify that she needed an ADA accessible room. Because Brooke does not allege that she was unable to utilize the online reservation system due to her disability, and because she does not allege that the hotels did not in fact have accessible rooms available, these lawsuits reflect a departure from the traditional theories pursued by ADA litigants.

While the tide of public accommodations litigation under the ADA continues to rise, the law and standards governing businesses’ liability in connection with their websites continues to develop.

In the meantime, businesses should review the content and design of their websites and mobile phone applications for accessibility issues, and consult with counsel concerning any questions or concerns about potential liability under the ADA or other laws.