A Colorado-based retailer of travel goods is one of the latest businesses to be sued over its website under the Americans with Disabilities Act, and a federal judge’s recent summary judgment against the company is sending shock waves across the Internet.
Colorado Bag’n Baggage has been ordered to change its website and pay $4,000 to a blind man who sued them under the ADA arguing they didn’t provide special tools like screen-reading software to help the man use the website. Judge Bryan F. Foster granted summary judgment to the plaintiff in March – reportedly the first time a court has done so in this type of case — and also ordered the business to pay the plaintiff’s legal fees which are expected to exceed $100,000.
Businesses, schools and other organizations that don’t construct their websites in a way that makes it possible for the blind, deaf and others with disabilities to use them are becoming more vulnerable to expensive lawsuits. Defendants have been arguing that a lack of clarity on how and if their websites must comply with the ADA means the lawsuits should be dismissed or delayed, but judges are increasingly willing to let the cases proceed.
The problem for website owners is that the ADA is not clear on which websites must comply with the law. Does Title III of the ADA, which applies to places of public accommodations, apply to a business with a website that doesn’t have a brick-and-mortar store? And does it apply to non-businesses, as well? Remember, the ADA was enacted in 1990, years before the Internet became a daily part of American life.
The Department of Justice has forced website owners to wait for clarification on those critical questions as it writes formal regulations. Despite promising regulations on Title III web accessibility in 2010, the DOJ has said it doesn’t plan to publish them until 2018 according to Amanda Robert writing for Forbes.
In the meantime, it’s not just businesses that are being sued. Harvard University and the Massachusetts Institute of Technology were sued in federal court by the National Association of the Deaf last year for not providing captions and other aids for its online programming. The judge in those cases rejected arguments by the universities that the court should dismiss or stay the case while the DOJ works on its regulations.
In her decision, Judge Katherine Robertson stated: “there is no reason that this case and the administrative process cannot proceed simultaneously on separate tracks. Should DOJ issue either set of proposed rules while this case is still pending, the parties can bring them to the attention of the court so that the court can have the benefit of whatever aid they may offer.”
Imagine going to a baseball game and not knowing if a batter will be called out after three, four or five strikes. Or going to a football game and not knowing if a holding penalty would result in a 10-yard or 20-yard penalty. Forcing businesses and other entities to defend themselves in court against ADA lawsuits when the federal government hasn’t established rules for them to play by is the kind of thing that is leading the public to lose faith in the justice system.
When you have such diverse defendants as Harvard and a travel goods retailer crying foul, something is terribly wrong. In the meantime, the only ones who are thriving on this uncertainly, of course, are the plaintiff attorneys and their clients.
Why has the DOJ delayed providing the needed rules and allowed the situation to get so bad? Is it indifference? As Walter Olson says on Overlawyered.com: “More likely, it shows that even an administration that has launched many audacious and super-costly initiatives in regulation has figured out that this one is so audacious and super-costly that it should be – well, not dropped, but left as a problem for a successor administration.”
Please read more at EpicTimes.com.
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