Is your business is a place of public accommodation?
This is the key question. Why? Well, if your business is not considered a place of public accommodation, then the requirements of Title III of the ADA do not apply to your business. In addition to that question, it is important to ask whether your business’ Website itself is a place of public accommodation. There is ambiguity in the law on this issue, and therefore, room for litigation.
The next tactic used in these cases will be to claim that the customer’s inability to access and use accessible auxiliary aids and services has impaired, obstructed, hindered, and impeded the customer’s ability to enjoy the shopping experience for goods and services at the company’s location where merchandise is offered for sale. The language will probably be phrased that the customer’s inability to enjoy and learn about company’s merchandise resulted in a virtual barrier which has precluded the customer’s enjoyment of and access to the company’s goods and services. The argument will likely go on claiming that the customer’s inability to enjoy the company’s inventory of goods and services prior to entering the physical store’s retail sales location has hindered, impeded and inhibited the customer’s entry to the company’s store. The example will probably be given that the customer has missed out on purchasing and enjoying the company’s goods and services, and as such, the customer has suffered particularized harm. Because the customer cannot communicate with the company, the customer has not had access to the huge selection of the business’ merchandise.
The lawsuit probably will claim that the company’s Website lacks accommodations necessary to allow visually impaired individuals who use screen reader software access to the Website, prompting information to locate and accurately fill-out online forms and to browse through the company’s merchandise for the purposes of purchasing that merchandise, purchasing gift certificates, and/or creating a wish list of merchandise for consideration to purchase in the future.
The argument will go like this: The fact that the customer could not communicate with the company left him excluded from accessing the company’s physical store locations, and left the customer with the feeling of segregation, rejection, and isolation, as the customer was unable to participate in the same manner as provided to the public.
The lawsuit will even go so far as to claim that the customer attempted to locate an Accessibility Notice which would direct him to a webpage with contact information for disabled individuals who have questions, concerns or who are having difficulties communicating with the company.
Top 49 tactics used by lawyers when they sue a company claiming the business website is not ADA compliant
If you just were served with a lawsuit in Florida federal court alleging that your business violated Title III of the ADA because its website was not able to be navigated by a blind customer, you should promptly contact an experienced ADA lawyer. You can reach our firm by email or by calling 1-772-465-5111. We are here to help you.
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Florida is witnessing an explosion of lawsuits claiming a business website violates the Americans with Disabilities Act (ADA) because blind people cannot navigate the website. This article explores the tactics we are seeing Florida lawyers use when suing Florida businesses.
ADA lawyers in Florida claim that they are suing your business to stop the marginalization of blind, vision-impaired, and low vision patrons of your business.Title III of the ADA is no like Title VII of the Civil Rights Act. Before someone can sue your business for a Title VIII violation, the person suing must first provide you with notice. However, Title III of the ADA does not require the blind person to provide your business with any notice at all before they file a lawsuit in federal court. This means that the first time you are notified about an alleged Title III ADA violation is usually when a process server hands the company president a summons and the actual lawsuit (called a Complaint). There are strict timelines associated with responding to a lawsuit in federal court so you should immediately contact an experienced labor & employment lawyer such as the Law Office of David Miklas, P.A. to guide you through the process.
The key argument that these ADA lawyers make is that the company’s business (such as a retail store) is open to the public and is a place of accommodation subject to the requirements of Title III or the ADA. These lawyers argue that the company controls and maintains and/or operates a collection of related web pages including multimedia content, typically identified with a common domain name, and published on at least one web server, namely the domain located at a website of the company business.
These lawsuits claim that the company website permits the public to find the business’ retail store location. Sometimes these lawsuits also claim that the company website also serves as the electronic catalog for merchandise for sale in the bricks-and-mortar store.
The ADA lawyers claim that all of the above result in the conclusion that the business website is an integral part of the company business. These lawyers claim that by this “nexus,” the website itself is characterized as a place of public accommodation under Title III of the ADA. Essentially the claim is usually that the company website is a public store that is on-line, where the public can view and purchase merchandise. This seems to lead these lawyers to the conclusion that the company website is itself a sales establishment which is a place of public accommodation under the ADA, and therefore the website must comply with all of the requirements of the ADA.
There will likely be language in the lawsuit saying that the company has not disclosed to the public any intended audits, changes, or lawsuits to correct the inaccessibility of its Axillary Aids and Services, and has not offered any other credible from of Auxiliary Aids and Services other than its Website.
The above list of things the lawsuit will say that the website did not do will be used to argue that the company has not provided full and equal enjoyment of the services, facilities, privileges, advantages, and accommodations provided at its business.
The next part of the lawsuit will usually deal with the topic that Public Accommodations must insure that their Places of Public Accommodation provide Effective Communication for all members of the general public, including individuals with disabilities. The lawsuit will usually make broad statements such as stating that the broad mandate of the ADA is to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life. The broad statement will likely go in and say that this mandate extends to internet shopping websites, such as the website your company uses.
The tactic that will probably be used by the ADA lawyer is to claim that the company is aware of the common access barriers and barriers to effective communication within its Auxiliary Aids and Services which prevent individuals with disabilities who are visually impaired from the means to comprehend the information presented therein. The ADA lawyer suing your business will probably state that your company is aware of the need to provide full access to all visitors to its website. The lawsuit might even suggest that your business is out of touch because major retailing trade magazines have been publishing articles to alert retailers of the need to update their websites in light of current legal trends and cases.
In order to demonstrated that the customer has “standing” to sue, the lawsuit will probably claim that the customer continues to desire to patronize the company (and has the means and ability to travel to company’s physical store location), but is unable to do so, because he is unable to effectively communicate with the company in order to obtain access to company’s physical store location in order to participate in the goods and services offered at company’s retail store. They will probably say that the customer’s inability to communicate with/comprehend the company’s Website has impeded the customer’s ability to patronize the company’s physical store location. The argument will be that the customer (and others with vision impairments) will suffer continuous and ongoing harm from the company’s omissions, policies, and practices unless enjoined by the Court. The lawsuit will likely say that the blind person and his lawyer reviewed the company website and the company has not initiated an ADA policy to insure full and equal use of their business by individuals with disabilities.
The lawsuit might claim that the website has not even instituted an Effective Communications Committee to insure full and equal use of its Auxiliary Aids and Services by individuals with disabilities.
The lawsuit may also say that the company has not designated an employee as an Accessibility Coordinator to insure full and equal use of its Auxiliary Aids and Services by individuals with disabilities.
The lawsuit could also state that the company has not instituted an Auxiliary Aids and Services Accessibility User Testing Group to insure full and equal use of the company’s Auxiliary Aids and Services by individuals with disabilities.
The ADA lawsuit against your Florida business may make sensational statements such as:
such barriers result in discriminatory and unequal treatment of individuals with disabilities who are visually impaired.
such barriers result in punishment and isolation of blind and low vision individuals from the rest of society.
Disability lawyers who sue your business may state that the customer has no plain, adequate, or complete remedy at law to redress the wrongs alleged in his lawsuit and the lawsuit against your business seeking declaratory judgment and injunctive relief is his only means to secure adequate redress from your company’s unlawful and discriminatory practices. Essentially, no price can be put on the customer’s inability to shop for himself, which your business denied him through its website.
ADA lawyers argue that businesses can make choices (unlike visually impaired individuals) and can either make their business inclusive, or they can make them effective zones of discrimination and exclude the visually-impaired.
The argument goes as follows: when Florida business owners do not take steps necessary to notice people of their business’ limitations to provide auxiliary aids and services, they are not only marginalizing the visually impaired community, but they are actively excluding them from their business, which in fact segregates the disabled into being non-participants, i.e., second-class citizens.
The ADA lawyers in Florida typically claim that the business owns and operates a place of public accommodation. This is necessary because only places of public accommodation are covered by Title III of the Americans with Disabilities Act (ADA), which these lawyers claim imposes requirements on websites being accessible to disabled.
The lawyers will probably also quote from the portion of the regulations that states that public accommodations must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities; and in order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
The lawyers who sue businesses in these types of cases often argue that the business Website has not been designed to interface with the widely and readily available technologies that can be used to ensure effective communication. The lawyers again point to the regulations, stating that these regulations were implemented to effectuate Title III of the ADA, which prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation to be designed, constructed, and altered in compliance with the accessibility standards established by the regulations.
The lawsuit will also blame the business for not instituting an Automated Accessibility Testing program and for not creating and instituting a Specialized Customer Assistance line, nor service, or email contact mode for customer assistance for the visually impaired.
The lawsuit most likely will claim that the company has not created a Website page for individuals with disabilities, nor displayed a link and information hotline, nor created an information portal explaining when and how the company will have the website, Applications, and Digital Assets accessible to the visually impaired community.
Another claim might be that the company’s Auxiliary Aids and Services do not meet the Web Content Accessibility Guidelines (“WCAG”) 2.0 Basic Level of web accessibility, and that the company does not even have an Axillary Aids and Services Accessibility Policy.
The ADA lawyers who sue Florida businesses claim that it is “irrefutable” that the ADA and implementation of ADAAG requires that Public Accommodations (and Places of Public Accommodation) are required to ensure that communication is effective.
ADA lawyers who sue will usually refer to the Department of Justice regulations that state that auxiliary aids and services includes “voice, text, and video-based telecommunications products and systems.”
These lawyers will also usually quote the regulations for the proposition that they specifically state that screen reader software is an effective method of making visually delivered material available to individuals who are blind or have low vision. The reality is that although the regulations do identify screen reader software as an example of “auxiliary aids and services,’’ the regulations also list many other effective methods of making visually delivered materials available to individuals who are blind or have low vision.
The next argument is that the company must not discriminate against individuals with disabilities and may not deny full and equal enjoyment of the services afforded to the public. These lawyers make the claim that because the company’s website is open to the public as a part of its place of public accommodation, the company has subjected itself and its website to the ADA.
The tactic used in Florida by ADA lawyers is that the customer who is suing the company is presented as a person who is interested in purchasing merchandise which is offered through the company’s store (physical location) and the Website.
The “customer” will often claim that he called the business’ store to inquire about the various merchandise available at the store, and that the company’s representative failed to fully assist the customer and referred the customer to its Website.
The “customer” may even claim to have attempted on several occasions to utilize the company’s Website to educate himself as to the merchandise with the intent then going to the business’ retail store location to make a purchase.
The visually-impaired customer will claim that he utilizes some type of Screen Reader software, such as JAWS, which when utilized allows individuals who are visually impaired to communicate with internet websites.
There are some ADA lawyers who have made a cottage industry out of suing Florida businesses for ADA violations, claiming the company website is inaccessible to the disabled, almost always the blind. Some of these lawyers use the same disabled person over and over again as the “Plaintiff” to name in the lawsuit. This is because in order to bring these types of lawsuits in Florida, the lawyer must have a member of a protected class under the ADA. As an example, the lawyer may file a lawsuit on behalf of an individual who is legally blind because that person suffers optic nerve damage. The lawsuits typically include language that the blind person is substantially limited in performing one or more major life activity, such as accurately visualizing his world.
These lawsuits will often allege that the customer cannot use the computer or Internet without the assistance of commercially available screen reader software to interface with the Internet and websites. The argument typically is that as a result of the customer’s disability, he requires assistive technologies, auxiliary aids and services for effective communication.
The lawsuits that these ADA lawyers bring against Florida companies seek declaratory relief and injunctive relief to:
These type of lawsuits are almost always brought in federal court (such as the U.S. District Court for the Southern District of Florida), rather than state court. This fact is important because many lawyers in Florida concentrate on areas of law that are exclusively in state court and many business lawyers are not even admitted to practice in Florida’s federal courts. Florida’s federal courts each have their own rules, which are different from the typical Florida Rules of Civil Procedure, and lawyers who do not regularly practice in federal courts can miss deadlines, fail to file required pleadings, and otherwise screw up the defense. Therefore, it is important that if your business receives a demand letter from a lawyer threatening one of these ADA Title III lawsuits, that you immediately consult with a competent labor & employment lawyer experienced with defending these specialized type of cases in federal court.