Barclay Damon has published numerous legal alerts about the surge and continued onslaught of website accessibility lawsuits against businesses in New York State and elsewhere, particularly those operating in the hospitality industry. The lawsuits generally allege that the websites or third-party website(s), as applicable, are inaccessible to visually and hearing impaired individuals or fail to provide certain information to disabled persons concerning accessibility, in violation of, among others laws, the Americans With Disabilities Act (ADA).
New York State lawmakers recently proposed legislation that would, at least in theory, address the situation in a way that protects businesses from these lawsuits while allowing visually and hearing impaired individuals to commence legal action if businesses continue to ignore their obligations. More specifically, New York State Senator Jeremy Cooney and New York State Assemblywoman Carrier Woerner have proposed legislation (S7374 and A8054) that requires “a claimant alleging that the contents of a website or mobile application that describes goods and services provided at a place of public accommodation constitutes an unlawful discriminatory practice against visually and hearing impaired individuals serve written notice on the owner and provide 60 days to cure the alleged violation prior to commencing an action.”
The proposed legislation in many ways mirrors legislation previously proposed at the federal level, which we discussed in a prior legal alert and which has since stalled in the United States House Committee on Energy and Commerce. The Online Accessibility Act (OAA) would amend the ADA to, among other things, prohibit discrimination by any private owner or operator of a consumer-facing website or mobile application, establish web accessibility standards for these websites and mobile applications, and create a process under which private consumers must first exhaust administrative remedies before filing a lawsuit against an owner or operator for alleged discrimination.
It remains to be seen whether one or both of these bills or any other proposed legislation applicable to website accessibility will become law. We continue to recommend that any place of public accommodation operating a website or mobile application, which encompasses most businesses offering goods or services to the general public, take steps to ensure that these online systems are accessible to visually and hearing impaired users and otherwise comply with federal, state, and local disability laws. This includes conforming all web and mobile content with the Web Content Accessibility Guidelines, at least until there is meaningful legislative or regulatory action.
In the unfortunate event you are served with one of these website accessibility lawsuits, please do not hesitate to contact one of the attorneys at Barclay Damon. Our attorneys have represented and continue to represent a number of defendants in these lawsuits.
If you have any questions regarding the content of this alert, please contact Rob Thorpe, partner, at rthorpe@barclaydamon.com; Payne Horning, law clerk, at phorning@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area or Hotels, Hospitality & Food Service Team.