I’m not Maimonides, but I do think we need a Guide for the Perplexed concerning ADA website litigation because it seems that in many cases both courts and litigants have mistakenly treated websites as if they were buildings. Websites are not buildings, and recognition of that fact would do a great deal to eliminate or slow down abusive website lawsuits. If you are a defendant in such a suit or think you might be, this blog is for you and your lawyers. There is no silver bullet, but there are approaches to defense with real promise.
Let’s start with Diaz v. Kroger,* a case I blogged about in June. After Kroger defendants could see a clear but narrow path to winning a website accessibility case based on mootness. All that was required was:
- Expert testimony that the website met WCAG 2.0 AA standards, and
- That every accessibility barrier identified by the plaintiff had been remediated, and
- The plaintiff’s concession that these things were true.
On July 30 an attempt at summary disposition in another Diaz case failed. Diaz v. Lobel’s of New York, LLC, 2019 WL 3429774 (E.D.N.Y. July 30, 2019) The opinion shows just how narrow the mootness path is, but more important, illustrates what I think is a failure of courts and litigants to think clearly about standing, evidence and remedies in a Title III website case.
Lobel’s lost on its motion to dismiss and motion for summary judgment based on mootness because while the plaintiff conceded that compliance with WCAG 2.0 AA would satisfy the ADA’s requirements, Lobel’s own witness admitted there were still a few WCAG 2.0 AA problems. More important, the plaintiff himself described with fair specificity the problems he confronted after the date of supposed compliance. This created a genuine fact issue concerning accessibility that precluded summary judgment for the defendant. The plaintiff also failed to prevail on a motion for summary judgment. The report of his expert was excluded because it failed to satisfy the requirements of Rule 702 with respect to proof of reliability. The plaintiff’s own declaration was admitted, but the Court was unwilling to find that the problems identified by the plaintiff were, as a matter of law, sufficient to show the plaintiff was denied “full and equal enjoyment” of whatever he was supposed to have full and equal enjoyment of given contrary testimony from the defendant. Trial was the only solution, with the jury being asked to decide, presumably, whether the plaintiff had or had not had the full and equal enjoyment of something or the other. [Notably, as I’ll explain at the end of this blog, all the summary judgment evidence was based on examinations of the website made more than a year after the lawsuit was filed.]
I say “something or the other” because one of the unresolved questions in this and many other similar opinions is just what the plaintiff is entitled to full and equal enjoyment of. The statute requires full and equal enjoyment of the “goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Lobel’s was a 2nd Circuit case, so the court presumably treated the website itself as a public accommodation, thus eliminating one argument about how the ADA applies. That leaves open the question of just what full and equal enjoyment means and what has to be fully and equally enjoyed.
“Full and equal” is itself problematic. After all, a person who is blind cannot fully enjoy pictures – any caption or alternative text is bound to be a poor substitute. A deaf person cannot fully enjoy a music video, for no amount of captioning is going to really substitute for the music. “Full and equal” is impossible, so to understand what the ADA really requires you have to look at the longer interpretive provisions in part (b) of Section 12182, some of which include specific prohibitions against “discrimination” defined in terms of physical barriers to access, and Section 12183(a), which does the same for new buildings.
It is at this point that decisions concerning web accessibility begin to exhibit some confusion, for the discussion is often premised on a false analogy between websites and physical structures. For physical facilities the idea of “full and equal” is replaced by the construction design standards promulgated as regulations by the Department of Justice. This is required by the ADA itself, which defines discrimination to mean a failure to meet those standards. If the standards are met it doesn’t matter that some disabled individuals still don’t have have physical access to a store or shopping center or that another disabled individual is not even inconvenienced by a particular failure. “Full and equal” is artificially defined to a compromise that balances perfect access against cost and technical difficulty regardless of actual effect in any individual case. Moreover, this compromise eliminates the need to think about just what “facilities, privileges, advantages or accommodations” means with respect to physical access.** What the phrase means doesn’t matter because by definition a building that doesn’t meet the physical access standards doesn’t provide the required access to its “facilities, privileges, advantages or accommodations,” whatever they may be.
Problems arise when cases and principles concerning physical barriers to access are applied to websites. Websites are not buildings and they are not analogous to buildings. The analogy is false from a legal perspective because there is no provision in the ADA providing an artificial definition of discrimination based on some technical standard for websites. Businesses and some disability advocates would like something equivalent to the ADA design standards for websites; that is, a technical standard that doesn’t guarantee full and equal access but balances cost and technical difficulty against perfect equality. WCAG 2.0 AA is exactly that kind of compromise, as is its successor WCAG 2.1. In both cases there are more and less stringent success criteria, with A being pretty accessible and AAA being aspirational – something that might become possible in the future with technological advances. It isn’t clear, however, that creating a technical standard would accomplish what the ADA intends in terms of full and equal enjoyment of a public accommodation that happens to be a website. A website is not a “facility” as defined in the Title III regulations (28 CFR §36.104). “Privileges” as a legal term appears first in the Constitution (Art. IV, Section 2, clause 1) and later in the 14th Amendment. In general it includes the notion that a right or opportunity is “fundamental” in some way. To ask whether some feature of a website is “fundamental” only re-presents the original question – what about website accessibility is the ADA supposed to protect? The same is true of the words “advantages” and “accommodations.” Unless you know what kind of access the ADA is supposed to protect you can’t decide what technical standard is necessary to provide that protection or even if a technical standard is appropriate in this context.
The analogy is also false from a practical perspective. Even in our throwaway age buildings are designed to last for decades, at least and there is a real distinction between permanent conditions like the location of walls or the slope of a concrete sidewalk and temporary conditions like the location of product display. Websites, on the other hand, are deliberately impermanent and change from day to day or even minute to minute. This difference matters because part of the compromise embodied in the construction design standards was the idea that the one time cost for original construction of accessible facilities would be at most slightly higher than for inaccessible facilities and that this small extra cost would be amortized over years of use. The same notion is inherent in the “readily achievable” standard for existing facilities. The standards are absolute because implementation was not too expensive and was more or less permanent.
Websites are different. Creating a website that complies with WCAG 2.0 AA or a similar standard is substantially more expensive than creating a website that doesn’t. I’ve talked to experts who estimate the cost of meeting WCAG 2.0 AA is at least 50% more than the cost of creating a website without considering accessibility. Testimony in the Winn-Dixie case was that the cost of an accessible website to replace the existing inaccessible website would exceed $200,000. In addition, once a website meeting a standard like WCAG 2.0 AA is created it will almost certainly fall out of compliance with the technical standard in a relatively short period of time because it will be constantly updated and expanded. If you build a sidewalk to ADA standards you don’t have to check it every quarter to make sure it is still compliant, but most website accessibility consultants recommend live and machine testing of a website at least that often.
These costs matter in deciding what the ADA should require of a website. It has been easy for DOJ and the courts to say that the ADA protects the right of a disabled consumer not only to buy from a store, but also to enter the store to shop or even to enter the store as a “tester” whose only interest is in looking for accessibility problems. To apply the same standard to a website invites the kind of abuse we see in website litigation today. Almost all website lawsuits are brought by testers looking for WCAG 2.0 AA discrepancies. They may follow up by trying to complete a purchase, as Diaz did in the Lobel’s case, but that is merely to enhance the claim after a problem is found. Given the cost of website accessibility it does not make sense to claim the ADA protects the right to poke around looking for problems; something more substantial needs to be at stake.
There is a body of law that requires something more substantial; that is, “meaningful access” to the goods and services provided by the website’s owner. See, Natl. Assn. of the Deaf v. Harvard U., 377 F. Supp. 3d 49 (D. Mass. 2019) The “meaningful access” standard has a history dating back at least to the Supreme Court’s decision in Alexander v. Choate, 469 U.S. 287, 301 (1985), where it was applied in the context of the Rehabilitation Act. It fits neatly into the “program access” requirement for Title II entities as well. Under the meaningful access standard website defects that do not impair access to the goods and services offered by a website should not be violations of the ADA because it is access to goods and services that the ADA was created to protect, not the livelihood of lawyers who make a business of filing serial lawsuits.†
Something like this is what the Court seemed to be getting at in Lobel’s, but the meaningful access standard is one that can be applied at the summary judgment stage because any claim that some function of the website was not accessible can be measured by it. For example, summary judgment evidence establishing the plaintiff had no intent to access the goods and services of the website would result in the conclusion he or she was not denied meaningful access and therefore did not suffer an ADA injury. Similarly, summary judgment evidence that the goods and services of the website were available to the plaintiff without difficulty despite non-conformity to a technical standard would require the conclusion the plaintiff did not suffer an ADA injury. Applying the meaningful access standard eliminates the “gotcha” element of most web accessibility lawsuits, which frequently rely heavily or exclusively on things like missing alt tags instead of problems with access to goods and services.
One last aspect of the false analogy between websites and buildings deserves mention as well. Because websites change constantly the condition of a website on any given day is not necessarily or even probably relevant to its condition at some earlier time. The injury an ADA plaintiff suffers must occur before the suit is filed°, and an expert report on problems of any kind based on an audit months or years later may not reflect the condition of the website at the time of the supposed injury. An expert who measures a parking space a year after the lawsuit is filed can be pretty sure conditions haven’t changed unless there was deliberate remediation. An expert who tests a website a year after the lawsuit is filed is almost certainly looking at a different website. Moreover, because the injunctive relief permitted by the ADA is to remediate the condition that caused the plaintiff’s injury‡ only evidence that the condition causing the original injury continues to exist would justify injunctive relief and then only to correct that single problem, not to improve the overall accessibility of the website. The broad remedial relief provided in 42 U.S.C. §12188(a)(2) simply is not available in lawsuits against a website, and the recognition of that fact by litigants and the Courts would create an effective barrier to abusive ADA website litigation, must of which uses the in terrorem threat of massive website remediation costs to drive early settlement.
** “goods and services” are pretty obvious and not much of a problem.
† This is the fundamental principle on which the cases finding that those barred from membership in a credit union cannot suffer an injury from an inaccessible website rest. See 4th Circuit Decision a victory for all and other related blogs.
° See, Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 709 (2000).
‡ Title III includes special provisions for injunctions to remediate barriers to physical access. See, §12188(a)(2). There is no such provision for other kinds of ADA violations, so the provision in 42 U.S.C. §2000a-3(a) permitting only “preventative relief” applies. Under this provision the right to injunctive relief is limited to future harm caused by the condition that gave rise to the original injury, not some hypothetical failure that might occur in the future. See, City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670 (1983).