There has been an uptick in the number of Specialty Food Association member companies receiving demands from plantiffs’ lawyers seeking compensation for websites that are not accessible to the blind or visually impaired, and therefore violate the Americans with Disabilities Act of 1990, according to SFA attorneys at the firm ArentFox Schiff.
“Law firms have developed a cottage industry in this space, and each of the major players have a handful of disabled clients on whose behalf they file these lawsuits,” according to the firm, which said that New York, Florida, California, and Pennsylvania are hotbeds for this type of litigation.
“The most prolific plaintiff firms tend to systematically target specific industries, sometimes filing dozens of lawsuits in a matter of days against a category of businesses. It seems they may be turning now to target specialty food companies,” according to the firm.
SFA member Linda Eads, founder of startup Calizo Condiments in Miami Beach, Florida, received a demand for $10,000 by a plantiff’s firm in New York.
“I was shocked because I wouldn’t have done anything deliberate to eliminate anyone and I’m very sensitive about inclusion, but it’s been a horrible experience and very emotionally and financially draining,” said Eads. “As a new person to the industry, I was trying to learn so many things so fast and when I contracted with a [website developer] I expected that they’d be aware of the requirement to comply with this.”
To help prevent SFA members from receiving these demands and to educate them on the best way to respond if they do, ArentFox Schiff attorneys, who have helped hundreds of clients navigate these claims, shared their insights with SFA News Daily.
1. Companies that operate an ecommerce business are likely to face a website accessibility lawsuit or a demand that threatens one. The risk is higher for companies that connect consumers to a brick-and-mortar location.
“Many courts have limited the reach of Title III of the ADA (which prohibits discrimination on the basis of disability in the activities of places of public accommodation) to websites that have a connection to the brick-and-mortar location,” explained Sara Schneider, partner at ArentFox Schiff. “But keep in mind that other courts have concluded that standalone websites constitute a ‘place of public accommodation,’ and therefore, fall within the purview of Title III.”
2. ArentFox Schiff recommends that specialty food makers engage a vendor to help with their website either through developing it from the start or by performing an audit and assisting in addressing accesibility barriers. A standard has emerged for website developers to use as a baseline for compliance. The Web Content Accessibility Guidelines (WCAG) are used as a guidepost by courts.
Although using a vendor can be costly, they may end up saving a business owner money in the long run.
“It is difficult to put a dollar figure on the potential savings, but the assistance of a reputable vendor will deter many plaintiffs’ firms and position the company to defend against or pay a nuisance value to resolve claims," said Schneider.
3. Companies that receive a demand letter or lawsuit, should immediately contact legal counsel with experience in this area, advises ArentFox Schiff, which notes, “The key to minimizing cost is to handle these matters efficiently. In some cases, you may be able to negotiate a settlement directly, but it is worth consulting an attorney before doing so."
4. Perfect compliance with existing accessibility standards is unfortunately not realistic and difficult to prove if you receive a lawsuit or demand.
Blind or visually impaired people use screen readers or other devices to access and navigate the internet. A screen reader is a software program that accesses the text and coding of a website and delivers it to the user through a speech synthesizer or Braille display. A website that consists of a single page of text will be fully accessible and interpretable to the screen reader. A more complicated website—with graphics, links, layers, and plug-ins—may not be. A core issue is that, to a screen reader, text and images are entirely different things—they can read the former, but not the latter. Other accessibility barriers could include only allowing the user to navigate on a keyboard or having input features like a search bar not coded and not identifiable to a screen reader.
“Because websites are a dynamic, visual platform, they inevitably have some gaps in accessibility,” said Schneider. “To minimize those gaps, we encourage clients to institute policies that ensure website accessibility criteria are incorporated into any website updates.”
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