‘Drive-by’ legal actions target operators for failure to accommodate visually impaired users
Restaurant operators have long lived with the fear of being cited for violations of the American Disabilities Act if their place of business isn’t accessible to the disabled.
Now that fear is moving into the digital age.
A growing number of restaurant companies have been sued or threatened with ADA lawsuits because their website did not equally accommodate guests with visual impairment.
The issue is of particular concern as more restaurant companies rely on online ordering and payment, with loyalty programs and services like delivery tied to digital channels.
But while the U.S. Department of Justice has issued detailed guidelines for making a brick-and-mortar building accessible to all, there are no such rules for website accessibility under the ADA. Regulations are in the works, but are not expected to be published until 2018.
The lack of guidelines for websites hasn’t stopped some plaintiff attorneys from citing restaurant and retail companies with ADA violations under both state and federal law, says Keith Rozanski, an attorney with Haight Brown & Bonesteel LLP in Los Angeles.
This year alone, for example, complaints have been filed against Outback Steakhouse, Domino’s Pizza, Texas Roadhouse, Chick-fil-A, P.F. Chang’s, Olive Garden and Papa John’s.
Many more potential cases have likely been settled pre-litigation, notes Rozanski.
Smaller and independent restaurant companies are most vulnerable because they are less likely to have the means to spend money on defense lawyers, so settlement may seem the less costly option.
Janet Grumer, an attorney with Davis Wright Tremaine LLP in Los Angeles, says several of her restaurant clients have been threatened with lawsuits, but none yet have ended up in court.
Grumer notes there is disagreement in the courts about whether a website is a place of public accommodation under the ADA. “But I predict that, eventually, a website will be regulated and will be considered a place of public accommodation,” she adds.
Restaurant operators are not without some guidance, however, and that’s the best way to avoid being “low-hanging fruit,” says Grumer.
The DOJ has urged businesses to follow voluntary Web Content Accessibility Guidelines, or WCAG, version 2.0, rules that are expected to shape the ADA’s website-access regulations in development.
The guidelines are technical. In essence, the WCAG recommends four steps to creating a more accessible website:
Make it perceivable: Provide text alternatives for nontext content. Provide captions and other alternatives for multimedia. Create content that can be presented in different ways without losing meaning. And make it easier for users to see and hear content.
Make it operable: All functions should be available from a keyboard. Give users enough time to read and use content. Don’t use content that causes seizures. Help users navigate and find content.
Make it understandable: Make text readable and understandable. Make content appear and operate in predictable ways. Help users avoid and correct mistakes.
Make it robust: Maximize compatibility with current and future user tools.
One problem, however, is that the WCAG guidelines refer specifically to websites. But the same questions about accessibility could potentially apply to mobile apps, social media channels or even digital payment services like PayPal, Rozanski points out.
“It’s the wild, wild West,” he says. “Every day there are more questions than answers.”
Angelo Amador, the National Restaurant Association’s senior vice president and regulatory counsel, says the sad reality is that most restaurant operators want their websites to be in compliance. “But the question remains: what exactly is compliance?” he asks.
In February, NRA alerted members about hundreds of letters sent to restaurants in at least five states warning of ADA “compliance failures” related to restaurant websites.
The letter typically includes a draft settlement agreement under which the restaurant would agree to pay attorney’s fees and expenses, among other things.
Meanwhile, many restaurant operators would likely decide paying a $5,000 or so settlement request is preferable to $20,000 or so in legal fees — even though the payment and agreement to change a website won’t protect that business from being threatened with a lawsuit by another party.
“I don’t even think the goal is to get to court,” Amador says. “They just want to collect their $5,000 and move on.”
NRA, however, offers this advice to restaurant operators who receive a letter citing ADA violations related to a website.
The first step should be contacting your legal counsel or other consultants on accessibility issues. In addition, NRA recommends the following:
1. Research the plaintiff. One law firm, Carlson Lynch Sweet Kilpela Carpenter, sent hundreds of demand letters to retailers across the country for alleged ADA website-accessibility claims, including Foot Locker, Sears, Toys R Us, Hard Rock Café and more.
2. Check whether other businesses in the area are being contacted by the same individual or entity. As with other ADA drive-by lawsuits, plaintiffs in these cases often sue other businesses in the area as well. Depending on the facts of each case, coordinating defense efforts or strategies could be cost effective.
3. Assess the violations alleged. Work with legal counsel or other consultants to determine whether the violations cited are actually violations. In some cases, the incidents cited may not be.
4. Notify your insurance company. Your policy may allow coverage for potential lawsuits or threatened lawsuits, depending on the nature of the allegations.
5. Know your rights. If threatened with a lawsuit, you have the right to counsel and to ask plaintiffs to contact you only through that counsel. Law firms making such threats may attempt to persuade you to hire them to advise on website accessibility, NRA says, adding: “We recommend against it.”
Contact Lisa Jennings at [email protected]
Follow her on Twitter: @livetodineout
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