Recent wave of Pittsburgh disabilities lawsuits threatens company websites

By Vimbai Chikomo | Jan 13, 2016

PITTSBURGH - A growing number of plaintiffs have filed lawsuits, particularly in the Pittsburgh federal court, against companies with websites they claim violate the Americans with Disabilities Act.

The plaintiffs claim the sites fail to provide accommodations for people with disabilities. Many of the complaints have been filed against national corporations like the NBA, Brooks Brothers, Toys “R” Us and others.

Since the act was enacted when the Internet was barely off the ground, there is still a lot of uncertainty as to how ADA rules apply to websites, and how companies with websites can become compliant with ADA, said Bruce Ewing, partner at Dorsey & Whitney.

“It isn't clear because there is a lot of uncertainty about how a website can be made ADA compliant,” Ewing said.

 “Some would say having a telephonic alternative to online ordering is sufficient. Others argue that extensive changes to sites need to be made that can cost hundreds of thousands of dollars.”

The main firm filing these suits is Carlson Lynch Sweet & Kilpela of Pittsburgh. In the U.S. District Court for the Western District of Pennsylvania, attorney R. Bruce Carlson has filed at least 93 of the 123 ADA non-employment lawsuits against businesses since the start of 2014.

The ADA was enacted in 1990 by Congress and prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications and governmental activities.

Over the years, countless lawsuits have been filed against entities by plaintiffs claiming that the companies in question violated the ADA by not catering to people with disabilities.

Although some ADA website accessibility cases have been settled, many are still pending. And the number of companies receiving demand letters proposing paid settlements or large fines in litigation is continuing to grow, Ewing said.

In each case, the plaintiffs assert that websites fall under public accommodation since they offer services to the public. Therefore, any company with a retail website should provide reasonable accommodations for people with disabilities, the same way a retail store would be required to, Ewing said.

The defendants argue that the type of accommodations plaintiffs are demanding are unreasonable and extremely expensive, so much so that large organizations would consider whether the cost of implementing the costly changes was worth maintaining an online presence over, and smaller businesses would have no choice but to abandon the Internet if the changes sought by plaintiffs were implemented.

The U.S. Department of Justice has attempted to propose rules for website compliance by determining that, “Websites that do not accommodate assistive technology can create unnecessary barriers for people with disabilities, just as buildings not designed to accommodate individuals with disabilities can prevent some individuals from entering and accessing services. Web designers may not realize how simple features built into a website will assist someone who, for instance, cannot see a computer monitor or use a mouse,” the DOJ Notice of Proposed Rulemaking (NPRM), RIN: 1190-AA65, states.

Even though the Department of Justice has been clear about websites accommodating people with disabilities, inconsistent court decisions in ADA cases have given rise to much confusion, which the DOJ plans to address in proposed amendments to its regulations in order to clarify the rules to which companies must adhere to make their websites compliant with ADA.

However, the DOJ recently announced that it will not publish website accessibility regulations until 2018, which leaves many companies in limbo until then.

Ewing said that no one knows why these regulations are taking so long.

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