October 19, 2021

Volume XI, Number 292

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October 18, 2021

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A New Wave of Website Accessibility Litigation

Businesses, including various employers and financial service providers, continue to face potential litigation over the accessibility of their websites to individuals with disabilities. The increase in website accessibility litigation under the Americans with Disabilities Act (ADA) comes in light of the Department of Justice's (DOJ) indefinite delay in promulgating regulations on website compliance standards and various court rulings, which effectively have encouraged businesses to reevaluate their accessibility policies.

Visually impaired individuals have been increasingly challenging the online application systems of numerous employers under applicable state employment statutes. These statutes—unlike the ADA—have the potential to provide plaintiffs relief in the form of monetary damages. Specifically, plaintiffs are alleging that various companies' online job application pages are not designed to be fully accessible to visually impaired individuals, who often require the use of assistive technology—such as screen-reader software.

In addition, banks and financial service providers continue to be the target for ADA lawsuits resulting in companies reevaluating their policies given the possibility of litigation and associated costs. Plaintiffs continue to allege that certain website services are insufficiently accessible or incompatible with various assistive technologies in violation of the ADA—which, they argue, applies to virtual locations.

Currently, federal courts across the country are split on whether websites are, per se, covered entities subject to ADA accessibility requirements. This area of litigation continues to evolve with the notable Winn-Dixie case now pending on appeal in the U.S. Court of Appeals for the 11th Circuit. In that case, the court held that a grocery store was required to modify its website to comply with the ADA and the Web Content Accessibility Guidelines (WCAG) because the store's website was "heavily integrated" with the store's physical location. Many businesses now strive to make their websites conform to the WCAG 2.0 Levels A and AA. In June 2018, WCAG 2.0 was updated to include additional accessibility criteria, though the new WCAG 2.1 standards have not yet been required for ADA compliance.

As some courts trend toward resolving accessibility cases in favor of requiring websites to be accessible (possibly in response to the DOJ's inaction), employers and financial institutions are advised to review their websites and put in place a compliance program to address any accessibility issues.

Copyright © by Ballard Spahr LLPNational Law Review, Volume VIII, Number 239
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About this Author

Kaplinksy, partner, New York, finance
Partner

Alan S. Kaplinsky is Co-Practice Leader of the firm's Consumer Financial Services Group, which has more than 115 lawyers. Mr. Kaplinsky devotes his practice exclusively to counseling financial institutions on bank regulatory and transactional matters, particularly consumer financial services law, and defending financial institutions that have been sued by consumers in individual and class action lawsuits and by government enforcement agencies. Visit Mr. Kaplinsky's profile in Wikipedia.

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215-864-8544
Culhane, Ballard, Partner
Partner

John L. Culhane, Jr., is known for his work advising on interstate direct and indirect consumer and residential mortgage loan and leasing programs, through both traditional brick-and-mortar facilities and e-commerce. Before joining Ballard Spahr, Mr. Culhane was associate counsel with Mellon Bank, N.A.; associate counsel with Bank of America NT&SA; and senior attorney (section chief) with the National Credit Union Administration, the federal agency regulating federal credit unions.

Mr. Culhane addresses issues involving licensing,...

215-864-8535
Olabisi Okubadejo, Ballard Spahr Law Firm, Baltimore, Higher Education and Labor Employment Attorney
Of Counsel

Olabisi "Bisi" Ladeji Okubadejo represents institutions of higher education and business entities in civil rights and employment matters, with a particular focus on matters arising from alleged discrimination on the basis of race, disability, age, religion, and sex, including sexual harassment and sexual violence. She has experience both as an attorney in private practice and with the U.S. Department of Education’s Office for Civil Rights (OCR). She advises clients on complying with various federal laws, including the Americans with Disabilities Act (ADA), Titles VI and...

410-528-5532
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