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Recent Developments in Americans with Disabilities Act (ADA) which may Affect Business Owners

MUST SOUTH FLORIDA COMPANIES UPDATE THEIR WEBSITES TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT?

George L. Sigalos
Simon & Sigalos, LLP
3839 NW Boca Raton Blvd, Suite 100
Boca Raton, FL 33431
July 31, 2017

If you are a South Florida business owner, you probably know that your physical business generally must be accessible to disabled individuals; but did you know that you may be sued because your website is not accessible to disabled individuals?

A recent trend in the law is that disabled individuals are suing private companies on the claim that these companies’ websites do not comply with the Americans with Disabilities Act (“ADA”). Most of these claims are brought by blind individuals due to the incompatibility of these companies’ websites with screen reader software. However, the ADA does not specifically require that private companies design their websites to accommodate disabled individuals.

Title III of the ADA prohibits the owner of a place of public accommodation from engaging in discrimination against disabled individuals. A place of public accommodation is defined broadly enough to encompass nearly every business conducted in a physical space that a disabled individual might enter. To state a claim for relief under the ADA, an individual must allege that: “(1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability.” See Steelman v. Florida, No. 6:13-CV-123-ORL-36, 2013 WL 1104746, at *1 (M.D. Fla. Feb. 19, 2013) (quoting Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010)).

There is currently a split among the Federal courts as to whether a company’s website is considered a place of public accommodation under the ADA. The Civil Rights Division of the Department of Justice (“DOJ”) plans to release a Rule in 2018 which will decide this issue definitively. [link: http://www.lexology.com/library/detail.aspx?g=a09b4150-6c7d-461f-bc4f-f2483933feef]. Meanwhile, disabled individuals are bringing lawsuits against private companies whose websites are not accessible to the disabled all over the United States, including South Florida.

Some Federal courts have ruled that the ADA does not apply to private companies’ websites. For example, in Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012), the court ruled that the Netflix website is not a place of public accommodation, subject to the ADA, because it is not an “actual physical place.” On the other hand, some Federal courts have ruled that the ADA can apply to a website, independent of any connection between the website and a physical place. For example, in Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001), the court ruled that “[t]he site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services.” Lastly, many Federal courts have ruled that the website must be sufficiently related to a physical place to be covered by the ADA. For example, in Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015), the court ruled that a place of public accommodation requires “some connection between the good or service complained of and an actual physical place.”

The 11th Circuit Court of Appeals has not directly addressed whether a website is a place of public accommodation for the purposes of the ADA. The 11th Circuit has, however, ruled that the telephone-based process used to select contestants on a game show must comply with the ADA, reasoning that because the gameshow is filmed in a physical location, the gameshow a place of public accommodation. Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1282–83 (11th Cir. 2002). The Southern District of Florida, at least, seems to have two requirements for a website to be subject to ADA compliance: (1) that the website impedes the plaintiff’s access to a physical place of public accommodation, and (2) that a sufficient connection exist between the website and a “specific, physical, concrete space.” See Gomez v. Bang & Olufsen Am., Inc., No. 1:16-CV-23801, 2017 WL 1957182, at *3 (S.D. Fla. Feb. 2, 2017).

Even with the uncertainty in the law, private companies are being sued for having websites that are not accessible to disabled individuals. These lawsuits may pose a heavy burden on private companies because, in addition to having to pay their own lawyer, they may have to pay the plaintiff’s legal fees since the ADA permits attorney’s fees to the prevailing party. Furthermore, the ADA Title III Technical Assistance Manual § III-8.5000 states that attorney’s fees can be paid to a prevailing defendant only if “the plaintiff’s action was frivolous, unreasonable, or without foundation . . . .” However, if your company is sued because your website is not accessible to disabled individuals, you may still be able to have the claim dismissed and so may be able to limit or not pay the plaintiff’s attorney’s fees. If, after being sued, you update your website to comply with the ADA, the lawsuit may be dismissed as moot. See Kennedy v. Nick Corcokius Enterprises, Inc., No. 9:15-CV-80642, 2015 WL 7253049, at *3 (S.D. Fla. Nov. 17, 2015).

This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication. This information may not be up-to-date, complete, or accurate, and is subject to change without notice. Any representation or warranty that might be implied through this information is expressly disclaimed.

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