Emerging Issue: Dealer Website Compliance with the ADA
The internet has radically changed the way consumers shop for vehicles and make initial contact with motor vehicle dealerships. This expanding medium for advertising and marketing your dealership is not without its own regulations and potential pitfalls. One area of law where potential legal liability is quickly evolving is in the application of the American with Disabilities Act (“ADA”) to the internet and business websites.
At this point, everyone is likely familiar with the ADA’s regulations that require places of “public accommodation” to be accessible to all individuals, without regard for any physical or mental disability that may afflict them. This Federal law is applicable throughout the country to most commercial places of business, thus its interpretation and application are determined by the United States Supreme Court as well as Circuit Courts of Appeal and local Federal District Courts. While the US Department of Justice has promulgated substantial regulations giving guidance on the ADA’s application to physical places of business, requiring wheelchair accessible bathrooms and entryways among many other basic requirements, the Department of Justice has yet to provide much guidance on the ADA’s application to the internet and business websites. Thus, Federal courts throughout the country are being called upon to fill in the gap.
Enterprising consumer attorneys are testing the lack of administrative guidance in this area to argue for an expansion of the ADA’s protections from traditional brick and mortar business operations to a businesses’ cyber and digital operations. Moreover, because the ADA provides for the recovery of attorney’s fees to prevailing parties, attorneys will file cases where a plaintiff has suffered little to no actual monetary damages, and simply seek to “vindicate the client’s rights under the ADA.” This has led to an increase in threats of costly litigation against businesses, including car dealerships. Federal Circuit Courts for the 1 st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island), 2nd Circuit (Connecticut, New York and Vermont), 7th Circuit (Illinois, Indiana and Wisconsin), and 11th Circuit (Florida, Georgia, and Alabama) have all found websites of different businesses to be places of public accommodation and thus require them to be reasonably accessible to persons with disabilities. Whereas, the 3 rd Circuit (Delaware, New Jersey, Pennsylvania and the Virgin Islands), 6th Circuit (Kentucky, Michigan, Ohio and Tennessee) and 9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Washington, and Guam) have generally concluded that a place of public accommodation is usually only a businesses’ physical location. But, even in those jurisdictions, if a website is closely aligned with or a substitute for the physical place of business, it too can be a place of public accommodation. Therefore, no matter your geographic location, the decisions from all Federal Circuit Courts appear to be moving towards applying the ADA to require website accessibility for most business websites.
Thankfully, adding features to your website to meet accessibility requirements is relatively cheap and painless. Most experts in the field recognize the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) published by the Web Accessibility Initiative of the World Wide Web Consortium (“W3C”) as the standard for web accessibility. This organization has published guides, tutorials, and materials for assisting you in ensuring your company’s website meets the WCAG 2.0’s standards for accessibility. Compliance with these standards will ensure that no matter which state your business operates in, it should not run afoul of current ADA requirements. Many website providers and web-hosting organizations have preprogrammed toolbars or overlays that can be added to your existing website for relatively cheap to avoid this fast-emerging issue.
Should your dealership receive a demand letter from an attorney alleging your website is not reasonably accessible to a disabled individual, you should contact your experienced motor vehicle dealer attorney to evaluate the demands. Remedial actions can still be taken that should mostly obviate potential liability that may result from non-compliance. Attorneys’ claims of an entitlement to receive fees as a result of their demand letter are usually premature and are not appropriate. Notwithstanding, it is likely best to discuss your website’s accessibility with your web design consultant or website provider before you receive a letter demanding your compliance.