The Growing Threat of ADA Website Lawsuits

WASHINGTON, D.C. - While you were worried about COVID-19, lawsuits against businesses whose websites do not conform to the American With Disabilities Act (ADA) were rapidly growing.

There were 3,500 such lawsuits nationally in 2020, up from 2,900 in 2019. That does not include 10,000 “demand letters,” from lawyers demanding changes to a business’ website or face civil litigation.

Attention Turning to Green Industry

The lawyers lodging these lawsuits tend to work in vertical markets, having first targeted restaurants and hotels. But more recently they have turned their attention to the green industry, with 30 lawsuits involving green industry companies in the first three months of 2021.

Businesses Subject to the ADA

Businesses subject to the ADA are:

• Those that operate 20 or more weeks per year with at least 15 full-time employees, or
• Those that fall under the category of "public accommodation," such as restaurants, retail stores, garden centers, some landscape contractors, etc.

Courts have affirmed that the ADA applies to websites and mobile apps that connect customers to the goods and services of places of public accommodations. Most vulnerable in our industry are public-facing websites of garden centers and landscape contractors, especially those with e-commerce capabilities.

General Problems

Generally, web content should be accessible to blind users, deaf users and those who must navigate by voice, screen readers or other assistive technologies.

Some common problems with business websites are:

• Use of pictures without encoded text explanation of what they are. All images on websites should have “alt tags” that identify in words what the image is so that screen readers for the visually impaired can read the alt tag.
• Using images that have text in the image. Screen readers cannot read text that is presented as an image. Things like brochures, coupons and the like are often images.
• Lack of contrast between text and background colors. Choose colors that are easy to read and have high contrast. Often text is over a background image that can make it difficult to read.
• Videos without text explanations or captions. Videos should have a text script or closed captioning for those with a hearing disability. YouTube provides free tools to close caption videos or the opportunity to upload a text script.
• Documents not posted in an accessible format. Documents that are images like many PDF’s or jpg files are not accessible to screen readers. There are free online tools to scan PDF’s and provide tips as to how to make them more accessible. As well, Microsoft Office provides an “accessibility” button that can help make your Word, PowerPoint and Excel documents more accessible.

No Federal Guidelines for Website Compliance

Frustratingly, there are no federal guidelines for website compliance with the ADA. Congress has tried unsuccessfully to develop and pass such guidelines and the Department of Justice, which is responsible for enforcing the ADA, has not developed any guidelines.

However, industry has stepped up and developed Web Content Accessibility Guidelines known as WCAG 2.1. While these guidelines are very technical, there are many websites offering a more plain English interpretation.

Generally, your website should be

• Perceivable: Offer alternatives to text, such as audio alternatives or assistive technology, that allow sight-impaired individuals to perceive your website's content.
• Operable: Be sure users with disabilities can easily navigate your website and access content through their keyboard.
• Understandable: Make content readable and predictable and offer input assistance if needed.
• Robust: Make sure your website's content can be interpreted by various devices and platforms, like smart phones and tablets.

The WCAG guidelines offer three levels of accessibility:

• “A” a basic level of accessibility
• “AA” is compliant with the WCAG guidelines
• “AAA” exceeds the WCAG guidelines

What Should You Do?

Decide your level of risk. Garden centers with e-commerce capable websites are at greatest risk as well as landscape contractors that have showrooms and otherwise invite the public into their business. The more interaction that your website provides for the public with your business, such as ordering product, scheduling appointments, making product selections, etc., the more your website is an extension of your status as a “public accommodation.”

On the other hand, wholesale nurseries that have a purely “brochure” website and still rely on faxing their availability are probably at the lower end of the risk spectrum.

Weigh your risk profile with level of action and expense required to bring your website into compliance with WCAG 2.1 guidelines.

Also, remember that many of your customers may have disabilities and it’s good business to accommodate them by having an accessible website.

Last, don’t be the “low-hanging fruit” that will tempt an enterprising lawyer to target you with an ADA demand letter or lawsuit.