Technology Outpacing the Law – Websites and ADA Compliance

Here at ClassAction.org, it’s not uncommon for cases to come across our desks for which no neat legal remedy exists. When a class action is filed that has no clear road toward settlement or dismissal, and no on-the-books law or court-set precedent can provide clarity on the matter, things can become frustratingly murky for all parties involved in the litigation.

In many scenarios, new technologies, in particular, are responsible for this gray area in which, resolution options aside, it can be unclear whether any law has actually been broken or, admittedly, if the plaintiff suffered any real harm. It’s worth noting, too, that such lawsuits can raise more existential questions, such as whether the courtroom is even the best venue to resolve the dispute.

At this crossroad, how can a lawsuit proceed when decades-old legal rulings come face to face with innovations that may not have existed at the time the statutes were put into law? For that matter, when does it become necessary for either side of the argument to ultimately blink when class action litigation devolves into a staring match between now-not-so-clear legislation and the allegations presented in a lawsuit?

With that, welcome to our newest blog series, “Technology Outpacing the Law.” In this series, we’ll dive into situations and legal trends where the intersection of technology and the law has become problematic for plaintiffs’ and corporate attorneys, as well as the consumers caught in the middle.

To kick things off, we’ll start with a more recent example—one in which a decision from on high went a long way toward clearing up complaints over how a certain new technology was, at the hands of telemarketers, becoming intrusive—before getting into a new trend in case filings.

Remember a Time Before Text Messages?

Until somewhat recently, it was uncertain for some time where the Telephone Consumer Protection Act (TCPA)—the law passed by Congress in 1991 to address nuisance telemarketing practices and the use of intrusive automatic phone dialing equipment—stood on unsolicited text messages. This wasn’t the fault of the statute’s drafters, to be sure; text messages from cell phones just weren’t a way to communicate back then. In 2015, however, the Federal Communications Commission (FCC) handed down a ruling that, among other affirmations, strengthened TCPA protections for consumers by elevating advertisement text messages into the same light as abusive robocalls.

What can be gleaned from this example is law makers finally came around on the fact that text messaging was not a passing fad, and legislative adjustments needed to be made to reign in how companies were utilizing the new communication method. Since then, more and more companies are being held accountable for their allegedly illegal junk texting practices.

With this in mind, let’s examine if similar adjustments may need to be made concerning the Americans with Disabilities Act and allegations of non-compliance online.

Websites and Americans with Disabilities Act Compliance

A casual scroll through the ClassAction.org Newswire will reveal more and more lawsuits are being filed over alleged violations of the Americans with Disabilities Act (ADA). While for many years ADA filings concerned only brick-and-mortar, real-world problems allegedly experienced by ADA-covered plaintiffs—non-compliant handicapped parking spaces, a lack of proper signage, or inadequate wheelchair ramps leading into a facility, for instance—the vast majority of this new wave of litigation is rooted in perceived online ADA compliance problems.

Today, the allegations in a typical ADA compliance case, which, in our experience, tend to be filed by blind or deaf inviduals protected by the ADA, touch on a few of the same points:

Some of the cases we’ve written about that fit the above blueprint include:

And those were just the lawsuits filed in April 2017. Previously, major names mentioned in class action cases over alleged online ADA compliance problems include:

(Note: The plaintiffs in many of the cases listed above are represented by the same New York City law firm. We reached out to them with a few questions, to which they had no comment.)

While the bulk of the above lawsuits are still in their early stages, one popular burger chain, the defendant in its own ADA-compliance class action, has made newsworthy comments that could signal the beginning of a push for clarity on whether some companies’ websites, like their physical locations, should be considered places of public accommodation under the ADA.

Five Guys and “Places of Public Accommodation”

Like in many of the lawsuits listed above, the plaintiff behind the Five Guys class action alleged the burger chain’s website—through which customers can order food—does not follow ADA guidelines because various accessibility barriers found within the site deny blind and visually impaired individuals full and equal access to the company’s goods and services. The plaintiff, a blind woman from New York, alleged in the complaint that she and proposed class members were being denied “full and equal participation in the growing Internet economy” because Fiveguys.com, due to its exclusively digital interface, does not make use of assistive computer technology, such as screen reading software, alternative text and descriptive links.

On April 7, however, Five Guys Enterprises LLC pushed back against the action and asked a New York judge to throw the case out on grounds that the ADA applies only to physical places, and that, citing the language in Title III of the law, the plaintiff failed to prove Fiveguys.com is a “place of public accommodation.”

“By its clear terms, Title III only applies to those who operate a place of public accommodation,” reads Five Guys’ motion to dismiss. “While the statute does not define the term ‘place,’ this word’s meaning is unambiguous,” adding that multiple courts have agreed with this reasoning under Title III.

[UPDATE: A federal judge in New York City ruled on July 21 that Five Guys must face the lawsuit. In denying Five Guys’ motion to dismiss, U.S. District Judge Katherine B. Forrest said (paywalled) the company’s website is covered under the ADA, “either as its own place of public accommodation or as a result of its close relationship as a service of the defendant’s restaurants, which indisputably are public accommodations under the statute.”]

The ADA does expand upon the definition of a place of public accommodation. But it’s here that we’ve run into the proverbial gray area mentioned at the top of this post. Under the ADA, many types of physical locations are viewed as places of public accommodation, yet a 2015 appellate court ruling decided online-only businesses (think eBay, Netflix, Zappos, online games) are not.

But what about businesses that have both physical and online locations where customers can do business? If an individual could not enter a physical location and conduct business due to access barriers, is that any different than an individual who cannot conduct a business transaction online due to technological access barriers? Could lawmakers have anticipated that websites would become 24/7 commerce hubs when the ADA was making its way into law?

With the fate of dozens of proposed class actions up in the air, it’s imperative for clarifying ground rules—like a decision on whether a company’s website is a place of public accommodation— to be set either in courtrooms or Washington before this litigatory trend swells any further. And any forthcoming rules must be nuanced enough to account for the diversity among companies’ internet properties and the consumers who rely on the sites to do business.

One way or the other, it’s safe to bet that a breaking point is around the corner.