Anticipated increase in website and mobile application litigation as a result of COVID 19-pandemic: 12 practical steps toward compliance

Litigation Alert

COVID-19 Alert

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As the coronavirus disease 2019 (COVID-19) pandemic spreads, more than 90 percent of the population in the United States is currently subject to government mandates requiring them to stay home except when engaging in certain essential activities. Non-essential businesses have been ordered to close, reducing most retail stores to online shopping only. One consequence is that many people are now relying on websites and mobile applications to browse for and purchase goods and services, including ordering food for delivery or pickup and shopping for groceries, household items, clothing, and all manner of other goods and services. These changes may portend a permanent shift in consumer trends, as online grocery delivery orders and other mobile services have exploded.

According to data compiled by the National Federation of the Blind, more than 7.5 million people in the United States suffer from a visual disability. Many of these individuals are required to rely on assistive technology, such as screen reader software, to access websites or mobile applications. However, a visually impaired individual can only successfully navigate a website or mobile application if that website or application has been designed and developed to be accessible to the visually impaired.

Given the need for visually impaired individuals to rely on accessible websites and mobile applications more than ever during the COVID-19 pandemic, threatened and actual website accessibility claims may increase dramatically. Court rulings in numerous federal and state jurisdictions throughout the United States have made it clear that Title III of the Americans with Disabilities Act (“ADA”), along with analogous state and local statutes such as the California Unruh Civil Rights Act (“Unruh Act”) and the New York City Human Rights Law, requires that websites and mobile applications that constitute or relate to a place of public accommodation must be accessible to visually impaired and other individuals who use assistive technology (eg, reader software) when accessing them.

Such cases have typically involved allegations that companies have violated Title III of the ADA and the Unruh Act because their websites or mobile applications allegedly lack certain functionalities that would make them accessible to those with disabilities (such as including a text equivalent for every non-text element on a website or mobile application and ensuring that all web functions can be accomplished by using a keyboard instead of a mouse).

Such disputes had been on the rise even before the pandemic, with two recent decisions helping to spur that increase.

First, the United States Supreme Court declined to review a Ninth Circuit decision denying a motion to dismiss a lawsuit alleging that the company’s website and mobile application were not accessible even though they utilized reader software. The Supreme Court’s decision left intact the Ninth Circuit’s ruling that the ADA applies to websites and mobile applications and that a claim could potentially be brought under the ADA even though the Department of Justice (“DOJ”) has not issued any technical standards regarding accessibility.

Second, the California Court of Appeal recently held that Title III of the ADA applied to a restaurant website and that the restaurant was required to make its website accessible to blind individuals. In reaching its decision, the Court of Appeal upheld the trial court’s summary judgment in favor of the plaintiff based on its determination that the website was a place of public accommodation under the ADA and that the plaintiff had provided sufficient evidence that the website was inaccessible to her.

More than 2,230 new website accessibility cases were filed in 2019 against companies in a wide range of industries. Approximately 21 percent of these lawsuits were repeat lawsuits, filed against companies that had been sued in the past for digital inaccessibility. The largest percentage of such claims were filed against companies that provide retail or other consumer-facing services. Indeed, approximately 70 percent of such cases were filed against companies in the retail, hotel, consumer products and services, and restaurant industries.

Companies are urged to take notice of these lawsuits, because the number of these cases is increasing and some of them have been very costly

Complicating the issue of compliance is the fact that the DOJ, which is tasked with enforcing the ADA, has not issued compliance standards. Despite the absence of clear guidelines, the DOJ has been very active over the past several years in attempting to require companies to make their websites accessible to the disabled.

Companies that wish to proactively address website and mobile application accessibility issues are encouraged to comply with a comprehensive set of accessibility standards developed by a private industry group called the World Wide Web Consortium (“W3C”). The accessibility standards are referred to as the Web Content Accessibility Guidelines (“WCAG”), and the most current version of these guidelines was published in June 2018. The WCAG have three levels of compliance – Levels A, AA and AAA – with Level A the least stringent and Level AAA the most stringent. The DOJ, through consent decrees, and numerous courts have centered on WCAG Level AA as an appropriate level of compliance.

The WCAG Guidelines contain numerous detailed requirements, including requiring that elements of a webpage include start and end tags to ensure readability by screen reader technology; that captions be provided for all live audio content with synchronized media; and that text be resized up to 200 percent without assistive technology and without the loss of content or functionality. These additional functions and others can help ensure that websites and mobile applications are accessible to disabled individuals.

In light of the expected increase in the number of actual and threatened lawsuits regarding websites and mobile applications, spurred in significant part by the COVID-19 pandemic, companies are urged to take a close look at the accessibility of their websites and mobile applications.

12 practical steps

Here are 12 practical steps that companies are encouraged to consider taking, depending on the nature of their business and practicality of the measures::

  • Begin working toward ADA compliance now and don’t wait to receive a demand letter or lawsuit.
  • Settling on an appropriate level of WCAG 2.1 compliance.
  • Creating a cross-functional team to review website and mobile applications:
    • Consult your attorney before proceeding.
    • WCAG 2.1 is complicated and requires a high level of technical expertise.
    • Consider engaging appropriate technical consultants early, if needed, to conduct or assist with review.
  • Establishing a 24/7 telephone line that can perform all necessary website/app functions for those with disabilities who cannot access the company website/mobile application.
  • Auditing existing websites/mobile apps to identify/prioritize areas of risk and develop a corrective action plan.
  • Adopting an Accessibility Statement offering technical assistance and feedback opportunities for disabled consumers that is directly and prominently linked to the home page on the company’s website.
  • Developing and implementing accessibility policies and procedures.
  • Incorporating WCAG 2.1 Level AA compliance into any future website/mobile app updates.
  • Implementing routine website/mobile app monitoring to increase likelihood of compliance.
  • Reviewing whether customer complaints raising accessibility issues are being escalated appropriately.
  • Implementing ADA accessibility training for appropriate employees.
  • Incorporating WCAG 2.1 compliance expectations into vendor contracts, as well as related indemnity provisions in the events a vendor fails to comply.

Being proactive now can help prevent your company from becoming a target.

If you have any questions regarding these new requirements and their implications, please contact any member of DLA Piper’s IPT or Employment groups or your DLA Piper relationship attorney. Our earlier alert, Complying with the CCA online: web and mobile applications, and related webinar, ADA and digital accessibility, may also be of interest.

Please visit our Coronavirus Resource Center and subscribe to our mailing list to receive alerts, webinar invitations and other publications to help you navigate this challenging time.

This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.