Insights

Website Accessibility and the ADA: The Clear and Present Dangers

BY CSA STAFF

In 1990, the United States Congress enacted the Americans with Disabilities Act (ADA) to provide protections and accommodations for the millions of disabled Americans. Perhaps the most ground breaking impact of the ADA is enumerated under Title III which states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

Title III of the ADA by its very definition applies to “any place of public accommodation” and resulted in the enforcement of the Act against business establishments to implement accessibility standards to ensure equal enjoyment by disabled individuals. What ensued were a multitude of lawsuits where the ADA was used to ensure that retail stores, office buildings, and business establishments physically altered their structures to allow persons with disabilities equal and free access. While the ultimate ends to achieve accessibility was necessary, the means employed resulted in astronomical expenses in the form of construction costs, attorney fees and statutory penalties.

Internet

The accessibility standards under Title III have recently taken a new and dramatic turn. When the ADA was adopted, the advent of the Internet was in its early stages and the legislature did not contemplate or foresee the need to regulate the rights of individuals with disabilities to access commercial online websites.

The visually impaired were certainly at a disadvantage as the presence of online retailers became ubiquitous via the Internet. Invariably this led to the recent number of lawsuits filed against retailers with an online presence for violations of ADA Title III website inaccessibility.

Since January 2015, over 106 lawsuits have been filed in the Federal Courts alone. Recently, the courts have expanded the reach of Title III to retailer websites that offer and sell goods or services to the public. Equally, the Department of Justice (DOJ) announced it will issue formal regulations regarding website accessibility. The regulations will specially include requirements to allow website accessibility for the visually impaired.

Online retailers and commercial vendors face exposure to lawsuits filed by plaintiffs for violation of the ADA website accessibility. This litigation is exacerbated by the lack of clear compliance requirements, as there is no definitive case law or statutory interpretation, to guide the online provider.

Website Accessibility Litigation

Online retailers appear to be the new targeted industry for website accessibility lawsuits filed by “disability advocates" filed predominantly in California. Recent court decisions have provided some insight as to how the courts will rule on website accessibility cases.

In Davis v. BMI/BNB Travelware Company, the court granted plaintiff’s motion for summary judgment finding that the online retailer’s website did not comply as a matter of law with the accessibility requirements of Title III of the ADA and California’s statutory counterpart, the Unruh Civil Rights Act.

In the March 21, 2016 ruling, the San Bernardino County Superior Court of California found “a [sufficient] nexus exists between defendant’s retail store and its website that directly affects plaintiff’s ability to access [goods] and services.” The plaintiff was awarded $4,000 in statutory damages and attorneys’ fees.

In National Federation of the Blind v. Target Corp., the United States District Court for the Northern District of California allowed a class action lawsuit to proceed, ruling that a website is a public place of accommodation and a retailer may be liable if its website is inaccessible to the blind. The plaintiffs are a class of blind individuals who alleged that Target’s online shopping website was inaccessible to the visually impaired. This lawsuit is ongoing and there has been no final determination by the court.

Web Content Accessibility Guidelines

The World Wide Web Consortium, which acts as the international standards organization for the World Wide Web, published level AA success criteria in the WCAG. The DOJ and Courts have used these guidelines as a means to evaluate the accessibility of commercial web pages for individuals who are visually impaired under the ADA. Accordingly, online retailers can look to the WCAG 2.0 for some guidance to ensure website accessibility for their respective websites.

The visually impaired individual typically has software which acts as a screen reader that converts text to audio. The WCAG 2.0 guidelines recommend that online retailers provide text alternatives for non-text content; such as providing text captions for multimedia that can translate photographs and videos.

The guidelines recommend making it easier for users to see and hear content, by using easy to read fonts and graphics and making text understandable. Additionally, it is recommended that websites include features that help users navigate and find content easily. Finally, to ensure compliance, the guidelines address the importance of maximizing the website’s compatibility with different types of user tools and software that visually impaired individuals employ to navigate websites.

The website accessibility standards, or the lack thereof, present a possible new legal frontier that will develop in the months and years ahead.


Daniel P. Schrader, at Walsworth, is a seasoned trial attorney with more than 26 years of experience litigating a variety of complex legal matters. Lisa M. Parrish is an associate Walsworth’s general litigation and asbestos groups.

Walsworth, with over 80 attorneys with offices in Orange, California, Los Angeles and San Francisco, is known for excellence in litigation and transactional matters.

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A.Guliver says:
Nov-22-2016 02:49 pm

Semi Automated Web Accessibility Solutions
Thank you Daniel, As far as learning ADA title III risks and needs, this article is such a wonderful resource, I would recommend those who come through this article, to get more familiar with the various methods of compliance, some are Manual and some are semi automated (as www.user1st.com).

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Insights

What women want: A landscaping perspective

BY CSA STAFF

Plenty has been written about the importance of infusing experiences into shopping centers. Much has been written about placemaking. But not nearly enough has been written about the role a well-thought-out landscape environment contributes to overall experience and the power of "place." It’s more important to women shoppers than you might imagine.

No doubt you are fully appreciative of the importance of women to shopping centers. A 2013 Pew study found that 40% of all households with children under the age of 18 include mothers who are either the sole or primary source of income for the family. In a third of two-earner households, Pew reported, the woman is earning more than her husband, and the most recent Census report found that 25% of all US households are run by single mothers.

It’s no secret that it’s more crucial that shopping center and mall environments appeal more to women than men. But what is it, exactly, that appeals to them? A study from the Knight Foundation and the Gallup organization in 2010 discovered that physical beauty and opportunities for socialization are the two key factors to creating an emotional connection between people and their communities. This emotional connection is what will increase women dwell times and sales at retail centers.

Based on this very real data, savvy developers and their team of landscape architects and others are giving thoughtful consideration to what attracts women to their properties. Here are three must-haves:

Security. Women feel comfortable if there is convenient, well-lit parking as well as security personnel available and visible.

Environment. Women seek out special places for friends and family. Provide outdoor rooms where they can gather. Create a central area that allows connectivity with community. Provide color, a water feature, shade trees, umbrellas, fire pits, ample seating. Include child play areas and activities. Stimulate all five senses!

Story. Women will tell other women about a unique and memorable experience that involves beauty in nature. Don’t set about creating a shopping center with some nice landscaping in it. Provide a beautiful, natural landscape environment that happens to have retail in it. Change your perspective.

I recently asked a client what she thinks women want. "That's easy. Women love gardens. They will come back again and again to experience the gardens, shop at our stores, and eat in our restaurants. They will tell their friends and bring them here, too.”

Keep us happy and we WILL come back . . . often.


Julie Brinkerhoff Jacobs is the president of Lifescapes International, a world-renowned architectural landscaping firm whose work includes the Bellagio Casino, Rockefeller Center’s Channel Gardens, and the under-construction American Dream mall in New Jersey’s Meadowlands.

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Study: Apple Pay usage soars with digital targeted POP messaging

BY Deena M. Amato-McCoy

Apple Pay may be transforming mobile payments, but digital targeted messages spur more shoppers’ willingness to pay with their devices.

This message was delivered in a study from USA Technologies. The report measured the impact of targeted digital advertising screens on consumers’ use of mobile wallets – primarily Apple Pay. The impact of 35 vending machines located in New York and Louisiana were measured over a six-month period, between March and August 2016.

After 24 weeks, the organization’s ePort Interactive platform, a device located at point-of-sale that features targeted, digital advertising highlighting the availability of Apple Pay, produced a 36.5% increase in overall sales, and a 44.6% increase in total transactions, the report said.

Participating retailers using the advertising devices experienced 6% increase in total contactless average ticket; and an 18% jump at week 20. They also saw a 55.5% increase in revenue through contactless purchases, including Apple Pay. This number jumped to 121% at week 20, the study said.

Meanwhile, the targeted messaging devices generated a stunning 35.2% increase in overall mobile payment usage, data revealed.

“Based on our study, we believe that when businesses and operators present consumers with the option to pay for items with Apple Pay, the number of mobile payments made and the amount spent, increases,” said Maeve McKenna Duska, senior VP of marketing and sales, USA Technologies.

“The data from this study suggests that call-to-action messages underscoring speed, convenience and security of Apple Pay can act as an electronic gateway for consumers to learn about and use the mobile wallets already installed on their phones,” she added. “Further, unattended markets are continuing to drive Apple Pay usage as it offers consumers a simple and convenient way to pay without cash or a credit card.”

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