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This Is Why We Can’t Have Nice Laws

wooden judge's gavel with out-of-focus law books in background.
photo by Matthew Henry via Burst

Trial lawyers working on contingency fees are nothing if not creative. Unfortunately for the rest of us, the Americans With Disabilities Act offers them an evergreen outlet for those creative urges.

The latest fad in the ADA shakedown racket is website lawsuits. Lawyers are recruiting plaintiffs to sue a wide range of businesses and institutions not for maintaining inaccessible buildings or facilities, but for supposedly offering noncompliant websites.

A woman in my hometown of Fort Lauderdale, Florida, reportedly has reached settlements with at least 20 hotels and motels in the state. These suits center on the properties’ failure to explain their level of accessibility on their websites, in alleged violation of the ADA. The plaintiff and her lawyers do not contend that the hotels fail to offer suitable accessible accommodation, but rather that they failed to make their offerings clear in their online booking systems. The lack of accessible rooms would be a violation of the law; the lack of sufficient information about such rooms on a hotel website is a much grayer area.

More often, though, the purported problem in website accessibility suits is that the website itself is not accessible to users with hearing or vision problems. According to the National Retail Federation, more than 1,000 website accessibility lawsuits were filed in federal court in the first six months of 2018 alone. Retailers are not the only targets, either; one New York City resident is suing 50 colleges, alleging that their websites are not accessible to visually impaired users.

Question: When Congress enacted the ADA in 1990, did it anticipate that someone might someday require newspaper advertisements to also provide copy in Braille? Answer: Of course not. In the same vein, Congress could not have been specific about website accessibility three years before the introduction of the first graphical internet browser let everyday people begin to explore the World Wide Web.

Today, internet users with disabilities rely on a variety of tools and resources to navigate websites, including screen readers, screen magnifiers and voice recognition software. Common accessibility principles in web design include providing alternative text for images, transcripts for audio content and captions for video content. But the rules of website accessibility are far from standardized, and they certainly do not appear in the text of a law written nearly 30 years ago or in the implementing regulations. That means that businesses and institutions operating in good faith may easily overlook a potential issue or provide a solution that works for some users but not others.

Further, the ADA prohibits discrimination in “any place of public accommodation.” It is not at all clear whether and to what extent the law applies to nonphysical locations like websites. Some courts have required that websites have some ties to a physical location before they are subject to the ADA at all, while others have permitted cases against standalone websites. The Justice Department attempted to issue guidance about website accessibility requirements but later withdrew the proposed rules, in part because the ADA does not clearly grant the DOJ the authority to make them. For now, businesses and other potential places of public accommodation are flying blind where web accessibility is concerned – which makes them tempting targets for overreaching litigators.

The ADA has done a lot of good for a lot of people, and America is better off overall because we have it. But that doesn’t mean the law is not subject to abuse. And abuse is exactly what most of these website accessibility suites represent.

As Anastasia Protopapadakis, an ADA defense attorney with the Miami firm Gray-Robinson, told the Miami-Herald, if the true purpose behind these lawsuits was to expand accessibility, they would be failing in their aim. “There’s a question of whether it’s really the plaintiff encountering the barrier,” Protopapadakis said. She also observed that in the case of suits against Florida hotels, many smaller, independent lodging establishments have taken their websites down altogether rather than risk a lawsuit. True disability advocates are equally uneasy about the effect nuisance suits will have on actual accessibility. A representative of the National Federation of the Blind told Insider Higher Ed that the organization does not advocate jumping straight to litigation when an institution is not accessible; instead, it views lawsuits as a last resort when other approaches have failed. But that position, while sensible, creates no payday for lawyers.

The ADA itself allows plaintiffs to receive only injunctive relief and attorneys’ fees, but some states – including Florida – allow private individuals to win monetary awards from noncompliant businesses. This gives private attorneys ample motivation to proactively seek out potential plaintiffs, rather than the other way around. It also means that people who sue under the ADA in good faith, out of a sincere desire for access, are undermined by the small group of law firms who are responsible for a huge proportion of ADA suits. This problem isn’t new, but website accessibility suits represent a new manifestation of an ongoing problem.

A legislative fix would be easy to do technically, but impossible to accomplish politically as long as Democrats (who are the key enablers of the trial bar) control either chamber of Congress. The issue never even made it onto the radar in the first two years of Donald Trump’s term when Democrats lacked such control, possibly because the GOP had many higher priorities, but likely also because even the Democratic minority in the Senate would have been able to block substantial change.

In a way, this development is the fulfillment of prophecy by the National Federation of Independent Businesses that the ADA would be “a disaster for small businesses.” It wasn’t at the time, and hasn’t been in the decades since, but that does not mean the law cannot become a significant burden now.

This is what happens when good laws are abused. The proclivities of the trial bar are one big reason we can’t have nice laws.

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