If you have a website, this is a must-listen. Website ADA compliance is a hot topic. Rather than just take our word for it, we brought Michael Davis, J.D. into the conversation to share his expertise. Michael is an attorney at Nowlan & Mouat and specializes in corporate work. Website ADA compliance is something everyone should have on their radar sooner than later. We walk through case studies, frequently asked questions, and best practices to protect your company from lawsuits.

  • What is ADA compliance when it comes to websites? [3:20}
  • Why you should be concerned. [7:00]
  • The impact a non-compliant website can have on your business. [15:00]

Resources Mentioned: 

Let us help protect you and make your website ADA compliant. 

 Intro: You're listening to the Foremost Media Marketing Chat Podcast, with Jon Ballard and Evan Facinger.

Evan Facinger: Hey, everyone. Welcome to the Foremost Media Marketing Chat Podcast. We're really excited today. We've got a great episode. It's one that has really been getting a lot of attention lately, and it's about ADA compliance. Of course, Jon Ballard is here with me.

Jon Ballard:’ Hey, everyone. Nice to see you or hear you.

Evan Facinger: We have a very special guest, an attorney at Nowlan & Mouat, and his name is Mike Davis, and we are finally going to get to ask somebody all of the questions that we have, that I'm sure you have, all about ADA compliance, so we can start to get some actual answers put together. One thing quick too, before I let Mike introduce himself, is I do want to say, yes, Mike is an attorney, but we don't want any of this to be any sort of legal advice or be misconstrued as it. This is definitely a conversation that we're having. We just want to bring him in with his expertise. Without any further ado, Mike, how are you?

Michael Davis, J.D.: Great. Thanks for having me, guys. I appreciate the opportunity to come speak with you today.

Jon Ballard: Just to add some back history here, we've got some experience with this with Mike's firm. Over the last I guess probably two years now, this has started to become an issue, and it started in ADA compliance for websites. When I first heard it, it sounded ridiculous to me. Why would visually impaired even care about a website, but it's coming. It started with government agencies and stuff like that in Wisconsin. I think our first case or foray into this was a school district that we worked with. Now we're dealing with it, especially in California with clients, where the laws seem to be a little loose.

Jon Ballard: We'll dive into that, but it's definitely an issue that I think our listeners should be aware of. If you're not paying attention to it, you're going to be forced to sooner or later, in my opinion. A really timely topic. We really appreciate Mike joining us today. I think we'll turn it over to Mike. Mike, just tell us a little bit about your firm, a website address and how can people get ahold of you first, if we don't mind. We'll probably cover that again at the end too. If you're having issues with this or you have questions, Mike is a guy that we recommend talking to.

Michael Davis, J.D.: Our firm is a smaller firm located in Janesville, Wisconsin. We are a multi-practice firm. We don't specialize in any one thing. We have attorneys that handle anything from family law to municipal law, real estate law. My area of expertise is transactional in nature. I do real estate, estate planning, and I do quite a bit of corporate work. That's why this came to me, because this is in the corporate world here. Our website is nowlan.com, N-O-W-L-A-N.com. If you need to get a hold of me, our phone number is (608) 755-8100.

Jon Ballard: Perfect. Mike, let's dive right into it. Just generally, what is ADA compliance with regards to websites? How would you define that?

Michael Davis, J.D.: Sure. Let's take a step back here and talk about the ADA first. The ADA stands for the Americans with Disabilities Act of 1990. It was signed into law by President George H. W. Bush in 1990, with the goal of making what the law calls places of public accommodation more accessible for Americans with disabilities, right? You had stores, restaurants, things that were difficult to get to, whether it was a lack of ramps or a lack of elevators or any other sort of accessibility issue. This law was aimed at making the lives of people with disabilities more enriched by making sure they had equal rights to access.

Michael Davis, J.D.: With this law being signed in into act in 1990, you can imagine that websites weren't really addressed, right? I mean, sure, the internet, I think, was a thing back then, but not even close to what it was now. Not many people had even heard of it in 1990. With that kind of background, I want to say that ADA compliance in regards to websites is a little bit unsettled. Courts are still hashing things out. As you said in your introduction, this really started a couple of years ago.

Michael Davis, J.D.: It started in New York with a case that we refer to as Andrews v. Blick Art Materials, LLC. There, you had a plaintiff who was blind that tried to access Blick's website to buy some art supplies and couldn't, because the website was not compatible with their web reader. Therefore they sued, because they felt, "Look, this website is an offshoot of their store. Their store is providing a service. It's a place of public accommodation. I can't access the services provided by the website because it's not compatible with my web reader. I feel like my equal rights to access the place of public accommodation is therefore being prevented."

Michael Davis, J.D.: That's where things stemmed. They've mostly moved down that path. A lot of the cases that you see deal with people that are blind or visually impaired, right, because you think websites, who's going to have trouble accessing them? It's people who are blind or visually impaired. Other disabilities, such as people that are deaf or hearing impaired, don't necessarily have the same access problems because you can still read what's on the screen in most cases.

Michael Davis, J.D.: However, there was a case involving Netflix where Netflix did not provide closed captions to all their programming. Some of their programming had it, some of their programming didn't. Because they were providing a service and that service was not accessible for people who are hearing impaired, because there were no closed captions for them, courts ruled that Netflix was not providing equal access.

Jon Ballard: Mike, I think a lot of people are sitting here thinking, "I'm a small private business. Does this even affect," or for me, I'm not a school or a government agency. Should I be worried, and is this a concern?

Michael Davis, J.D.: The short answer is yes. I think the landmark case that really set this all off, Blick, dealt with a private business, right? They're selling art supplies. Initially, that case said, because there was a physical brick-and-mortar store and that the website was associated with that brick-and-mortar store, that that nexus caused the website to be a place of public accommodation. Therefore, the ADA applied. However, that's been pretty well expanded over the past couple of years. Now, really any website that provides a service is mostly considered to be a place of public accommodation.

Michael Davis, J.D.: Getting into a little bit more detail there, the way that the law works in this state, when you're talking about federal laws, is usually we have different circuit courts of appeals. The country is divided in different regions. Each circuit court has the ability to rule on things on their own until the Supreme Court steps in.

Michael Davis, J.D.: Because the Supreme Court hasn't stepped in, we have a little bit of what we call a circuit split. Courts in the First, Second and Seventh Court of Appeals have found that websites are places of public accommodation, no matter what. Courts in the Third, Ninth and Eleventh circuits have found that websites are places of public accommodation if they have a nexus to a physical location.

Michael Davis, J.D.: For the businesses that are out there, figure out where you are. If you're in the First, Second or Seventh Court of Appeals circuit there, then your website is 100% going to be scrutinized. If you're in the Third, Ninth or Eleventh, it's up in the air. If you're in a circuit that I did not mention, we have a big old question mark.

Jon Ballard: Where are those geographically, roughly? Any idea? I mean, California obviously is pretty liberal with this, as we're seeing.

Michael Davis, J.D.: I knew you were going to ask me that.

Jon Ballard: We'll put a link in the show notes to where they cover, maybe.

Michael Davis, J.D.: If you have questions, if you Google circuit court map, it comes up. When you're talking Ninth, that's West Coast. California's the big one over there in the Ninth Circuit. Third, Pennsylvania, New Jersey. Then Eleventh is Florida, Georgia, Alabama, or Mississippi actually. Sorry, Mississippi. Those are the ones where there has to be a nexus to a physical site. The First and Second is New York and north, so if you start in New York and you head north, that's going to cover the First and the Second Circuit. The Seventh is here in the Midwest, Wisconsin, Illinois, and Indiana.

Jon Ballard: Let me ask you this. I mean, if I'm stationed here physically in Wisconsin and I'm selling to California, do I need to be worried? I mean, because somebody from California then could sue me, theoretically.

Michael Davis, J.D.: Yeah. That's a great question. You're the expert on this one, but you'll see terms of service that say basically that you agree to bring any lawsuit in this jurisdiction. That may have a factor, right? If someone from California is suing a Wisconsin company, the Wisconsin company says, "By using this website, you agree to litigate anything in Rock County circuit court," or the federal court, the Western District of Wisconsin or whatever it is. Then realistically, a lawsuit would need to start in that court, which plays in your favor, I guess.

Jon Ballard: Right. You know, I guess the other thing that we are doing with Mike's help for some of our clients right now is ... and this hasn't been tested, so we're not 100% sure this insulates us ... but we are developing statements like, "If you're having trouble accessing this site, here's what you can do." We're trying to show steps of good faith to people with disabilities, giving them alternatives and helping with some of the disclaimers so that if we do end up in a court case, there's some good-faith steps there that hopefully will help influence our case a little bit. Mike, is that fair to say, how we're approaching some of this that we've talked about?

Michael Davis, J.D.: Yeah. I think you hit the nail on the head exactly. A statement on your website is not bulletproof, by any means. Someone can still bring a lawsuit. The court may still rule against you, but the hope is that it's a show of good faith. It shows that you're trying to accomplish what the law is meant to accomplish. The hope is there that, even if the court rules against you, that any sort of damages judgment is mitigated by that act of good faith, that you're out there. You're not doing this. You're not out there saying, "I don't really care about people that have disabilities and are unable to access my website." You're trying to take proactive steps to make sure that it's accommodating to everybody.

Jon Ballard: Mike, what happens if I get a letter in the mail? Is it typically an actual lawsuit, or are they threatening? We're thinking of a specific client. They got a letter from a law firm that claimed to be representing a blind individual. California again, but they basically were threatening to sue. How do you respond to something like that?

Michael Davis, J.D.: Yeah, I would get a lawyer. It's difficult for me to say, "Go ahead and respond." As bad as this is going to sound, you don't want to apologize, because then all of a sudden you're admitting guilt in an email. You've really got to watch what you say, because as they say, anything you say can and will be used against you, and in civil law, it's even more so. The bar is lower.

Michael Davis, J.D.: Get a lawyer, review the facts. Do a WAVE analysis on your site and see what's going on there, and work with an attorney to respond appropriately.

Jon Ballard: Right. We definitely recommend, if you're already in this case, fixing the issues that are found if there are issues. Mike mentioned WAVE. It's a plugin that you can use on Chrome that'll identify a lot of the issues that are ADA. There's also certain tests like WAG out there. A company like Foremost is going to help you analyze and fix issues like this. Don't ignore it. Take steps in good faith to fix it while you're dealing with the attorney side of it, is my advice as well in the cases I've seen.

Jon Ballard: Mike, in your research and experience, what kind of damages are you seeing awarded? What are the typical settlements you're seeing? Are people settling these out of court? Are they taking them to court? Is there litigation out there now?

Michael Davis, J.D.: Most of this stuff is two steps, these cases. The first step is determining whether the website was a place of public accommodation. In pretty much most instances, the answer is yes. When the answer is yes, then it's pretty much a losing battle after that. I think a lot of these companies are settling out of court, because you're not seeing a lot of the second step being litigated. You're cutting your losses. You're settling out of court and you're fixing your website.

Michael Davis, J.D.: As to what these settlements are, it's really hard for me to say because that's usually a private matter, even when you're talking about damages that are awarded. I haven't really seen a whole lot of that in the cases that are out there, because it's really not getting that far.

Jon Ballard: Okay. When you talk about public accommodation, again I'm thinking of a specific case here, but what determines that? Is it just the fact that we're inviting the public in? Is an e-commerce site different than just an informational site? If it's a strictly picture-based site, art site or something, is that's different than any other site out there?

Michael Davis, J.D.: That's the million-dollar question right now, is what constitutes a place of public accommodation. Obviously when you're talking a physical location, that's real easy. If you're inviting the public to come in and you're providing some sort of goods or services at that location, then that's a place of public accommodation. Websites are a little bit more difficult to pinpoint.

Michael Davis, J.D.: If you are selling like Blick was doing, if you're selling something, you're providing a service, there was a case with Five Guys where I think it was the app for Five Guys was deemed to be inaccessible. If you're providing for online orders through your app, then that's a place of public accommodation.

Michael Davis, J.D.:To answer your question about informational purposes, my opinion is if you're only providing information on your website, you're not providing a service. You're not providing a service, right? You have pictures, maybe you have some prices out there, but you have to call a number to place an order or go to a store to order something anyway.

Michael Davis, J.D.: My hunch is that's not going to be considered a place of accommodation, because there's extra steps that are involved anyway, right? It'd be no different than sending out a newspaper ad. The newspaper ad isn't going to be considered a public accommodation. It's just an advertisement, right? That's what a website that's informational only is, is an advertisement. It's a marketing tool.

Jon Ballard: Makes sense. Mike, this might be actually a better question for Evan. Once you get your site compliant, Evan, what are we doing with making sure it stays compliant? Is there a need or a case for that?

Evan Facinger: Yeah. No, I think that's a great question, I think, even for Mike, right, because a lot of it is you have it somewhat compliant, right? I think anybody that does a lot with websites and web development knows that just because it's set up one way doesn't mean it stays that way, so everybody going in there and making changes, adding other pages to it. We see that a lot with the majority of the websites that we encounter. How much of that actually stays compliant? How much of that can be changed on a page-to-page basis? Have you done too much into that, Mike?

Michael Davis, J.D.: I can't say that I've looked into it too much or that I've actually come across it too much. Some websites can have thousands of pages, right? You have the main landing page that you go to, but gosh, how many subpages are there that you can navigate to? It's important, really, to make sure that every single one of those is compliant.

Michael Davis, J.D.: I will tell you that in my research out there, there are some free tools. WebAIM is a nonprofit organization based out of Utah State University. That's the Chrome extension that we mentioned earlier, but they have a very simple tool that allows you to do that WAVE analysis. There are other companies out there that claim to specialize in compliance.

Michael Davis, J.D.: Again, I haven't done a whole lot of digging into it because I'm not a web developer, but these companies claim that they will, using AI, make sure that you're in compliance, that you stay in compliance, that any change does not take you out of compliance, and they charge a fee for that. It can be pretty hefty depending on how many websites, how many pages, subpages you have after your main page. Just because your title page is compliant doesn't mean that a plaintiff isn't going to click a link and go to something that has low contrast and broken links that are inaccessible to them.

Jon Ballard: I can tell you, what we're recommending for our clients these days is obviously fixing any compliance issues that we find, and it's site-wide. It's not just one page, like Mike said. Then it's also things change on websites from time to time, as updates and people put new content on. At the very least, maybe quarterly you should be scanning that site again and checking for compliance. The tools to scan are not expensive. We offer a service to do that as well.

Michael Davis, J.D.: It's like we talked about before, right? As long as you're showing good faith, you're acting in good faith. Maybe you have something that breaks when you do an update and you catch it, like you said, quarterly. I can't see a court ruling against you if you're trying to do the right thing.

Jon Ballard: You mean there's some reason in these court cases? Another question I had for you, it seems like ... and maybe correct me if I'm wrong ... there's some firms that are just specializing in this. They have a client that's ADA or disabled, and they'll basically just file a bunch of lawsuits all over the place, every site they come across. Is that really a trend? Is that something that you're seeing more of, less of?

Michael Davis, J.D.: Yeah. No, that's definitely a trend. There was an attorney in Texas that filed like 350 suits, and they got reprimanded a little bit for that. I had a buddy in law school that, when he graduated and became an attorney, he used to drive around town and look for buildings that were non-ADA compliant and basically send letters, threatening to sue if they didn't add a ramp or whatever. I think you're seeing the same thing with attorneys. I think you see attorneys that are just out there surfing the web, and if they find something, they've got somebody who will be a stand-in plaintiff for them.

Jon Ballard: Gotcha.

Evan Facinger: When you say go out and find something, are there certain things, short of running the entire WAVE analysis, that people should be aware of as they're just looking at the website from an ADA compliance standpoint?

Michael Davis, J.D.: I think yes. I think it's really easy in some aspects. If you think about contrast as an issue for people who are visually impaired, thinking of your client here, if you have small, bright lettering on a lighter background as well, that's going to create contrast issues that are going to be difficult to see. If you're just out there browsing the web and there's not a lot of contrast, I think that's going to be a red flag for someone who's looking for something.

Evan Facinger: Okay.

Jon Ballard: We're a web development company, obviously. When we started building websites, this really wasn't even an issue, ADA compliance. We'd never even heard of a lawsuit. Now, fast-forward to some of these old sites out there. Because some of our audience I believe is in the web design side, some of them are end users, how much liability is the web development company in all of this, versus the person that owns the website?

Michael Davis, J.D.: That's a great question. So far, all I've seen is litigation against the website owner. That doesn't mean that there hasn't been some sort of subrogation provided by the developer or that the owner hasn't gone back against the developer as well. I just haven't come across those.

Michael Davis, J.D.: That said, I think that needs to be a contracting issue with the developers, or I think that developers really need to throw that into their contracts, an indemnification or a disclaimer that says, "Hey, look, we're developing this for you based on your specifications. You're taking on full responsibility for ADA compliance, unless you hire us to do it," because realistically, I'm sure as far as you guys know, once that's out of your hands, they can make all sorts of changes that now take it out of compliance. I think that needs to be addressed contractually to protect the developers.

Jon Ballard: I can say, if you're a web development company out there listening to this, Mike and his team have helped us a lot with our contract over the years. There's a lot more than just ADA compliance you should be addressing. It's been eye-opening for me to have you guys review our agreements and stuff. It might be worth your time. If you're buying a website, it might be worth having Mike and his team take a look at the contract with your web developer, just to make sure you're covered as well.

Jon Ballard: A few other questions. Actually, Mike, I'm going to throw an audible at you. Our team, I was telling them we were talking to you today, and they had a list too. One of them want to know if there's a definitive list of things that you should fix.

Michael Davis, J.D.: My answer to that would be, if you run a WAVE on your website, fix the errors, not necessarily the alerts.

Jon Ballard: Yeah. What we said too is just there's WAG testing you can do, which is what a lot of the courts have done. You definitely should hire somebody that knows what the heck they're doing to fix these issues, because they're not typically simple issues. They're usually in the code.

Michael Davis, J.D.: Right. Exactly.

Jon Ballard: Another question was business-type matter. I think we covered that already. Is there any legislation you know about there or pending cases that may go to the Supreme Court that might give some clarity to this issue and be more definitive? Because I think ... correct me if I'm wrong, and maybe you could speak to this ... there's a lot of uncertainty out there right now. Is there anything you know of that's out there to change that?

Michael Davis, J.D.: There is a lot of uncertainty, and unfortunately I'm going to say no. I haven't seen anything that's been certified to the Supreme Court. Realistically what we'd like to see, as an attorney what I'd like to see, is direction from the Department of Justice. They have issued advisory opinions and then taken those back. They've retracted those advisory opinions. There's really nothing out there to help these people.

Jon Ballard: In the short term, the best advice is?

Michael Davis, J.D.: Do your best. Try and be compliant. Stay on top of it, right? I mean, treat this like it's a broken link on your website that's causing you to lose income, right? You'd fix a link. If your Buy It Now button wasn't working, you'd get that fixed right away. This should be treated the same way.

Jon Ballard: Excellent advice, Mike. Thank you again for your time today. Is there anything else you want to add? Also, can you just give us your contact info one more time in case somebody tuned in late?

Michael Davis, J.D.: Sure. One thing, since this has been doom and gloom, I want to talk about one quick case that's a little bit more positive on the business side of things. There was a case where a plaintiff sued a bunch of credit unions in the state of Michigan, and the plaintiff was not a member of those credit unions, nor was she able to become a member due to some interest cases with the Michigan law and how these credit unions are formed. The court said that merely browsing the web without more isn't enough. They didn't know what enough was in those cases, but there had to be some sort of nexus there. It's not like just anybody can click on your website. There is some at least common sense out there.

Jon Ballard: I think what I'm hearing you say is if you sell a really expensive piece of equipment like a bulldozer or something, and that person that might be browsing the web is not ever going to buy a bulldozer, there may be some case that we're not discriminating against them.

Michael Davis, J.D.: Exactly. Exactly, right? That's perfect. That's a perfect example.

Jon Ballard: I think the challenge here is, unfortunately, you can sue anybody for anything. You're still going to want to take your best effort and try and head off even a lawsuit about that bulldozer example. You don't just rest on the fact that, hey, not a lot of blind or handicapped people buy bulldozers.

Michael Davis, J.D.: I'm going to guess that Foremost Media is cheaper than an attorney. They always say an ounce of prevention is better than a pound of cure, right? I think that's where it needs to be, is get that prevention in. Prevention is cheaper than fixing an issue.

Evan Facinger: Good tagline.

Jon Ballard: Good advice. Evan, anything else to add?

Evan Facinger: No. This is great, Mike. I really appreciate it. It was great information.

Michael Davis, J.D.: Yeah, thanks. I appreciate you having me on.

Jon Ballard: Thanks so much, Mike. Have a good one.

Michael Davis, J.D.: You too. Bye-bye.

Outro: Thanks for listening to the Foremost Media Marketing Chat podcast. Don't forget to like and subscribe, so you can stay on top of your game by never missing an episode. You can find even more marketing insights and show transcripts at foremostmedia.com.
 

 

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