Retail Observer

RETAILOBSERVER.COM MAY 2018 44 E very retail business should ask itself this question: is my business accessible to customers with disabilities in compliance with Title III of the Americans with Disabilities Act (ADA)? In answering this question, most business owners immediately think about that ramp that was just installed, the accessible bathrooms that were just remodeled, and count the number of handicap parking spaces in the parking lot. Some owners may proudly answer this question with a confident "yes," having had an ADA accessibility survey conducted at their store. However, most do not think about whether or not their website is accessible. Beware, you can have a fully accessible store with no physical access barriers at the store, and still be the subject of the next "surf- by" Title III lawsuit. Businesses have been forced to deal with "drive-by" lawsuits under Title III for some time. These lawsuits typically involve a prospective plaintiff, or their counsel, simply driving down the street noting any businesses with technical ADA violations (i.e. inaccessible entrances) and filing suit without warning. Now, a growing number of cases pave the way for a new type of Title III lawsuit – the "surf-by" lawsuit – where a plaintiff, or their counsel, simply needs to log onto a company's website, regardless of whether any sales are conducted on the site. Plaintiffs who are visually impaired and rely upon screen reading software or other computer access technologies to read and access Internet websites bring most of these "surf-by" lawsuits. If a prospective Title III plaintiff's (or their attorney's) particular technology is not compatible with your website or portions of your website, they will assert that a violation exists and you may be the target of the next "surf-by" Title III lawsuit. Businesses have attempted to defend these lawsuits on the basis that Title III only applies to physical "brick-and-mortar" locations. In other words, a website is not a place of public accommodation protected under the ADA. The Federal Circuit Courts addressing this issue are split as to whether websites are required to be accessible. Some Circuit Courts have concluded that websites may be public accommodations covered by Title III and must be accessible. On the other hand, other Circuit Courts have concluded that places of public accommodation must be physical "brick-and-mortar" locations. As such, Title III would not cover businesses with a purely online presence in significant portions of the country. However, if you have a "brick and mortar" location, regardless of the jurisdiction where your store is located, your website may still need to be accessible. This is because of a recent trend where courts are side-stepping the issue of whether a website is a public accommodation covered by Title III by holding business's liable if their website offer services having a sufficient nexus to their physical stores. For example, courts have found that websites offering coupons, store locator services, and online shopping with in-store pickup need to be accessible. The more touch points your store has to your website, the more likely it will be covered. These "surf-by" lawsuits have been exponentially increasing over the past few years as plaintiffs' attorneys look for ways to expand the scope of Title III. Recent court decisions upholding the viability of these lawsuits will only further the trend. One approach to deterring and preventing such lawsuits is to consult with legal counsel or a website consultant to identify the existence of any issues with your company's website as to the use of assistive technologies, for example, and prepare and implement an appropriate remediation plan. While the Department of Justice (DOJ) has not yet set forth any require- ments or regulations for website accessibility, courts, the DOJ, and plaintiffs' attorneys have looked to the Web Content Accessibility Guidelines (WCAG) published by the World Wide Web Consortium (W3C), for guidance. As has always been the case, taking appropriate preventive measures is the best defense against Title III lawsuits. Steve Miller.and.Scott.Fanning Retail Views RO "SURF-BY" LAWSUITS THE NEW FRONTIER OF TITLE III ADA LAWSUITS Steve A. Miller and Scott C. Fanning are attorneys with Fisher Phillips LLP, a national labor and employment law firm that represents employers. smiller@fisherphillips.com sfanning@fisherphillips.com www.fisherphillips.com

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