Plaintiffs have filed thousands of lawsuits (including class actions) alleging that commercial websites are not accessible to the blind or visually impaired in violation of the Americans with Disabilities Act of 1990 (the “ADA”) and corresponding state laws. These lawsuits have targeted businesses of all sizes and industries, including clothing and apparel stores, restaurants, financial institutions and e-commerce stores. Plaintiffs typically seek court orders requiring defendants to remediate their websites and to pay attorneys’ fees, in addition to money damages under certain states’ human rights laws. Given the onslaught of these lawsuits, here is what companies need to know:

What is the Legal Basis for these Lawsuits?

Title III of the ADA requires private sector businesses that serve as “places of accommodations” to remove “access barriers” that hinder a disabled person’s access to their goods and services.

Recently, thousands of lawsuits have been filed by blind or visually impaired plaintiffs on the theory that: (1) commercial websites qualify as places of public accommodation; and (2) websites with access barriers (e.g., those that are not compatible with screen-reading software that vocalizes visual information on a computer screen) deny plaintiffs’ right of equal access in violation of the ADA and corresponding state law. Plaintiffs have also challenged the accessibility of mobile applications and online job application systems.

A 2017 trial win in Florida seems to have fueled the surge in these lawsuits. In that case, the Florida court held that grocer Winn Dixie’s website violated the ADA and ordered it to remediate its website, notwithstanding the $250,000 price tag for doing so.

There is significant uncertainty in this legal landscape, however, as courts have disagreed on whether the ADA covers websites not connected to brick-and-mortar stores. Courts in the Third, Sixth, Ninth and Eleventh Circuits have held that a website is only subject to the ADA if the company that owns the website also has a brick-and-mortar store. However, courts in the First, Second and Seventh Circuits have interpreted the ADA to apply to websites (e.g., Netflix and Scribd.com) that are not connected to physical structures.

The majority of these cases settle early, largely because plaintiffs are often willing to accept less than it would cost defendants to move to dismiss the action or engage in the discovery process. For defendants that have chosen to fight these cases, the results have been mixed, with courts refusing to dismiss these lawsuits except in limited circumstances.

What Preventative Measures Can Companies Take?

Given the rise of these lawsuits, it is important for companies of all sizes to review their digital presence—e.g., websites, mobile applications and online job application systems—to assess whether they comply with the ADA and related state laws. Unfortunately, there are no official laws or regulations issued by a governmental agency specifying accessibility requirements. In the absence of specific guidance, several courts have recognized the Web Content Accessibility Guidelines (“WCAG”) issued by the World Wide Web Consortium as the governing standard.

A good first step for companies is to assess whether their websites comply with the most recent version of these guidelines—WCAG 2.1. There are several vendors that specialize in assessing what accessibility issues exist on company websites, and remediating those issues to achieve WCAG 2.1 compliance.

However, on September 25, 2018, the Department of Justice issued written guidance stating that companies have “flexibility in how to comply with the ADA” and that noncompliance with WCAG 2.1 “does not necessarily indicate noncompliance with the ADA.” DOJ previously made this “flexibility” point in its 2010 Advanced Notice of Proposed Rulemaking for websites, when it stated that companies may comply with the ADA by providing an “accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website.” No court has yet ruled on the viability of a telephone option in lieu of an accessible website.

Given the uncertainty of this legal landscape and the risk of being sued, all companies should take steps to assess the accessibility of their digital presence and should consider reducing legal exposure by obtaining indemnifications from third parties who code their digital content.