The newest trend in Americans with Disabilities Act (“ADA”) lawsuits target businesses’ websites. Litigants have increasingly sued or threatened to sue under Title III, alleging that the website is not sufficiently accessible to the disabled (i.e., the website lacks assistive technology for individuals who are blind or hearing-impaired).

Litigants commonly point to the international “Web Content Accessibility Guidelines (WCAG) 2.0 AA” as the standards that a website must meet to ensure that the website’s content and features are sufficiently accessible to all individuals. These guidelines have not yet been adopted by the Department of Justice (“DOJ”), which issues ADA’s formal regulations. Moreover, the Trump Administration recently moved the ADA website regulations onto the “inactive” list and it is unlikely that the DOJ will address these regulations in the near future. This means that WCAG are simply guidelines and not yet law.

The uncertainty and lack of regulations will not stop or discourage a plaintiff from sending your business a demand letter or even filing a lawsuit. It is also unclear how a court will rule. In 2017, a Florida District Court ruled against Winn Dixie, finding that their website violated Title III of the ADA by having an inaccessible website. The Court further held that the $250,000 cost to remediate Winn Dixie’s website was not an undue burden and ordered Winn Dixie to make its website conform with WCAG Guidelines 2.0 AA. That same year, a California federal court went in another direction and dismissed a lawsuit against Domino’s Pizza finding the failure of the DOJ to issue clear guidelines for website compliance violated defendant’s due process rights.

What does this mean for you? Businesses should reach out to their web designers to ensure that their website design ensures conformity with WCAG 2.0 AA criteria, even if such guidelines are not yet law. Businesses should also consider reviewing their agreements with web designers/developers and decide whether compliance with WCAG 2.0 AA criteria should be included in those agreements.

For more legal news, check out our quarterly update for April 2018!