The 1990 “Americans with Disabilities Act” (hereinafter “ADA”) is a federal civil rights law designed to prevent discrimination based upon one’s disability. Disabilities covered, but not limited to those of hearing, mobility, and sight. Discrimination based upon one’s “disability” is illegal in all fifty (50) states and United States territories.
The covered disabilities under the ADA cover physical and mental medical conditions. The condition just needs to be present and does not need to be permanent or significant to be a disability under the ADA. One who is blind, deaf, has an intellectual disability, has loss of limbs, mobility or is physically impaired are covered under the ADA. Also protected under the ADA are those with muscular dystrophy, major depression, post-traumatic stress disorder and other mental health issues.
ADA Website Lawsuits
Within the last year or so, many American retailers have been sued where the complaint alleges that their websites violate the civil rights of blind or sight-impaired internet users. Some of the companies sued under the ADA for claims that their websites are in violation of Federal law are The Home Depot, Inc., J.C. Penney and the National Basketball Association.
There is concern in California that ADA website lawsuits may spill over from large retailer defendants such as The Home Depot Inc. to much smaller businesses including real estate brokerages who routinely have websites to attract customers.
Americans with Disabilities Act Website Lawsuits
In Diaz v. The Home Depot, Inc. filed November 20, 2015 in case # 1:15cv09178, S.D.N.Y., the plaintiff who is visually impaired claims that The Home Depot’s website is an exclusively visual interface despite the existence of technologies which if utilized could allow him access to hardware and building materials retailer’s website. These technologies include alternative text accompanying images, accessible forms, descriptive links and resizable text. As operated, The Home Depot’s website denies those who are legally blind full and equal access to its website.
Unfortunately, the United States Department of Justice announced in the fall of 2015 that it will not be publishing accessibility regulations for websites until 2018. The absence of guidelines as to website accessibility have promoted such lawsuits.
42 U.S.C. §12182(a) of the ADA prohibits discrimination in the full and equal enjoyment of public accommodations on the basis of disability. The ADA defines a place of public accommodation as a facility whose operations affect commerce and that falls within at least one (1) of twelve (12) types of establishments.
The ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.“ (42 U.S.C. § 12182(a). What this statute means for website operators presently is an open issue under Federal law.
The ADA does not address access to websites. Courts are divided on whether websites are a place of “public accommodations” under the act.
Under the ADA, civil penalties may be up to $55,000 for the first violation and $110,000 for each subsequent violation.
On March 21, a California Superior Court judge in San Bernardino County for what is believed to be the first time in any court, granted summary judgment to a blind plaintiff who sued luggage retailer Colorado Bag’n Baggage over its website and awarded him damages as well as attorney’s fees. This particular plaintiff has filed at least nine lawsuits in San Bernardino County Superior Court and another two in federal court. Several have been resolved through settlement.
How To Prevent An ADA Website Lawsuit
There are many companies in California who offer suggestions as to how to prevent an ADA website lawsuit. Some of the suggestions are as follows:
- If non-text content either presents information or responds to user input, there needs to be a text alternative.
- If non-text content exists like multimedia, live audio or video streaming, a test or exercise that uses a particular sense or is designed to create a specific sensory experience, then a text alternative needs to be present in the form of a label at minimum.
- Captions need to be provided for any media that is prerecorded.
- Audio descriptions of video, or a full multimedia text alternative such as a transcript, needs to be provided for recorded video.
- Sign language interpretation is provided for live multimedia.
- Provide extended audio descriptions for any prerecorded video .
- Text or diagrams, and their background, need to have a luminosity contrast ratio of at least 5:1.
- The ability to turn off audio on a website without turning off computer speakers.
- All functionality on a website is operable in a non-time-dependent manner through a keyboard without the use of a mouse.
- Content on a site does not blink for more than 3 seconds.
- Except during real-time live events, timing on a site is not an essential part of the interaction or activity presented by the content.
- When an authenticated session expires, the user can continue the activity without loss of data after re-authenticating.
- Content does not violate the general flash threshold or the red flash threshold.
- Web elements do not have any components that flash more than three times in any 1-second period.
- Each link has text with it describing the purpose of the link.
- Titles, headings, and labels are descriptive.
- All images on a page must have an alt tag with descriptive text.1
Given the uncertainty of what constitutes a violation under ADA website lawsuits, it is recommended that you consult with your IT person about the matter and how best to prevent one from happening for your real estate brokerage.
1Items 1 through 17 are taken from the Tri-Net Solutions, Inc. online website on the subject how to prevent an ADA website lawsuit.
About the Author
B. Edward McCutchan, Jr.
Sunderland | McCutchan, LLP
Mr. McCutchan’s practice is primarily civil litigation with an emphasis in defending professionals and businesses in real estate, mortgage brokering, construction, banking and agricultural industries and all phases of dispute resolution through trial and appeal. His area of practice is also agricultural law (viticulture and wineries), trusts and estates, probate, real estate transactions, business law and elder abuse. B. Edward McCutchan, Jr. was admitted to the Bar in 1985 and is admitted and qualified to practice in all California courts and the U.S. District Court, Eastern and Northern Districts of California as well as the United States Tax Court.
