Article written by Valérie BluthEllenoff Grossman & Schole LLP
With the new year officially upon us, hospitality employers should be aware that website accessibility lawsuits still loom large. The Americans with Disabilities Act (“ADA”) prohibits discrimination against members of the public with disabilities in the “full and equal enjoyment” of the goods and services of any “place of public accommodation”.
Most often, website accessibility lawsuits are brought by visually or hearing-impaired people alleging that a website lacks the correct software or components, such as a screen reader or sub-components. coded titles on video, to enable them to have equal access to goods or services. offered on the website.
Much has been made of recent court cases across the country that initially dismissed website accessibility cases, finding that websites are not “places of public accommodation” covered by the ADA, including one case from the Court of Appeals for the Eleventh Circuit and two from the Eastern District of New York (“EDNY”). However, holdings in these cases are limited and may have given hospitality employers a false sense of security.
In 2021, two EDNY judges ruled that only businesses not associated with a physical location (“Web-Only Businesses”) were not covered by the ADA. However, these credits would not apply to restaurants, bars or other hospitality businesses that have a physical location. Additionally, these rulings have limited effect outside of the EDNY (which covers Brooklyn, Queens, Staten Island, Nassau and Suffolk counties) – several judges in the Southern District of New York (“SDNY”), which covers New York, Bronx, Westchester, Dutchess, Orange, Putman, and Rockland counties ruled that the ADA applies to web-based businesses only – and has no effect on businesses that have a physical component, such as restaurants, grocery stores and other retail businesses. shops, hotels, etc.
Finally, the EDNY judges relied on the 2021 Eleventh Circuit Court of Appeals ruling that a website was not a public accommodation within the meaning of ADA Title III to reach a similar conclusion, but that Eleventh Circuit ruling was actually overturned just last month — meaning this case is no longer good law. As such, even the EDNY cases are based on case law outside the federal courts in New York that no longer has precedent.
Perhaps most importantly, plaintiffs’ attorneys are undeterred by these recent rulings and continue to pursue website accessibility lawsuits at a rapid pace. In fact, it’s been reported that nearly 700 website accessibility lawsuits were filed in New York federal courts in the last quarter of 2021 alone. And, plaintiffs’ attorneys are aware of the split between EDNY and SDNY – almost 90% of these cases were filed at SDNY. This type of forum shopping is permitted, and as long as the individual resides and/or the business is located within the geographic boundaries of SDNY, there is no reason to dismiss the case on jurisdictional grounds alone.
Whether websites are a place of public accommodation that must comply with the ADA continues to be the subject of litigation across the country and in New York, and the split between the EDNY and SDNY decisions is ripe for resolution by the Court of Appeals for the Second Circuit. But, until there is a definitive answer to the question of whether websites are subject to the ADA, Web-Only businesses are not off the hook anytime soon and shouldn’t. cling to the false hope that a website accessibility case cannot be brought against the company. , or if such a matter is filed, that it will be expedited.
Therefore, businesses should take this opportunity to review the requirements of the Website Content Accessibility Guidelines (WCAG) 2.1, as well as applicable national laws, such as the California Unruh Act, and ensure that their site Web is compliant. Companies should also note, however, that most plaintiffs’ attorneys are not swayed by the company’s use of a “website accessibility overlay” and do not view the use of such overlays as a defense against website accessibility claims.
These cases are largely driven by attorney fees and are difficult to defend without expending significant resources. As such, hotel businesses would be remiss if they didn’t take the time to make website accessibility a top and ongoing priority.
Valerie Bluth is a partner in the Labor and Employment Group at Ellenoff Grossman & Schole LLP. For more than ten years, Ms. Bluth has exclusively represented and advised clients on employment-related matters, with a particular focus on the hospitality industry. Above all, Ms. Bluth works tirelessly to ensure clients are in compliance with an ever-changing landscape of federal, state and local employment laws, particularly as they relate to pay practices and policies. of employment, and to design practical solutions to any employment problems that may arise. Ms. Bluth can be reached at (212) 370-1300 or [email protected].