It was only a matter of time until the flood of litigation over the accessibility of websites to persons with disabilities reached Arizona. Recently it did when an Arizona man and his attorney filed lawsuits against four Arizona businesses alleging that their websites are not accessible to blind and visually impaired consumers in violation of Title III of the Americans with Disabilities Act of 1990 (ADA) and the Arizonans with Disabilities Act (AzDA). All of the lawsuits were filed in the United States District Court for the District of Arizona by Joseph Charles on behalf of James Close, who claims to be a resident of Texas and legally blind. Charles and Close also sued several Arizona hotels in June of 2016, alleging that Close encountered barriers to access in their parking lots.
In the new website lawsuits, Close alleges that he has attempted to access the websites of several companies that conduct business in Arizona, but claims the sites are not compatible with screen reading software and other technologies that permit blind and visually impaired consumers to access and navigate website content. This prevents him from determining what is on the website, browsing through the site, looking for store locations, and making purchases. Close seeks permanent injunctions requiring the businesses to retain qualified consultants to make their websites compliant with the Web Content Accessibility Guidelines 2.0 (WCAG 2.0) Level AA design standards, train employees involved in website development regarding WCAG 2.0 compliance, conduct ongoing audits and testing to ensure the website remains compliant, and develop an accessibility policy for the sites with an email address and telephone number to report accessibility-related problems. He also asks that the court order the companies to take their websites offline until they fully comply with the ADA. Finally, Close seeks penalties under the AzDA and attorneys’ fees.
Hundreds of similar lawsuits have been filed (and thousands have been threatened) across the country over the last few years against various retailers, restaurants, and other businesses, including some in which the U.S. Department of Justice (DOJ) has intervened to assert its position that websites are places of public accommodation and subject to the ADA. Until now, however, Arizona businesses have not been a significant target for these kinds of actions. In prior lawsuits, Close has identified himself as an advocate for disabled individuals and a “tester” for asserting civil rights and monitoring compliance with the ADA by places of public accommodation. That fact, combined with the nearly identical nature of the four lawsuits that Close just filed and the ease with which a potential plaintiff could try to access a website from the comfort of his or her own home, suggests that Close and his counsel (or others) could and likely will file similar actions against other businesses that have a website and operate in Arizona, Texas, or elsewhere.
What Can Your Business Do?
The U.S. Architectural and Transportation Barriers Compliance Board recently finalized a regulation requiring covered federal agencies and contractors to make their websites accessible to disabled individuals using the WCAG 2.0 Level AA design standard. This strongly suggests that the U.S. Department of Justice (DOJ) likewise will adopt that standard when it finally issues its regulations. Even in the absence of DOJ regulations, the DOJ and many courts have ruled that the ADA requires accessibility for the websites of most private businesses.
Business owners in Arizona and other states may want to evaluate whether their websites comply with WCAG 2.0 Level AA design standards. A proactive approach to compliance and avoidance is almost always more cost-effective than defending these kinds of cases, and it helps to ensure the availability of your goods and services to all customers.
