Kevin O’Hagan and Renee Coover of O’Hagan LLC have been named Lead Coordinating Counsel for cases involving ADA Compliance for websites.  The O’Hagan team is deploying compliance strategies for companies across the US.

Traditionally, Title III of the ADA applied to brick-and-mortar places of public accommodations, prohibiting business owners from discriminating against disabled individuals who did not get full and equal enjoyment of products and services.  More recently, there has been a significant increase in online commerce between businesses and their customers, changing the way products and services are sold.

The Courts are currently split on whether the ADA applies to Websites, providing little guidance as to the applicability of the ADA to company websites.  One view, promulgated by the Court in Nat’l Ass’n of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012), is that the ADA was meant to evolve with technology and even though Netflix is an entirely web-based provider without retail locations, the Court assumed that public accommodations apply in the context of the internet regardless of how the product is consumed.  In a more recent opinion by the 9^th Circuit in Earll v. eBay, 599 F.App’x 695 (9^th Cir. 2015), the Court swung the other way, reading the ADA more narrowly, holding that since eBay’s web-based services were not connected to any physical place of accommodation, eBay is not subject to the ADA.

To further muddy the waters, the Department of Justice (DOJ) has been charged with enforcing Title III of the ADA, but it has not proposed any rules to govern the accessibility of websites operated by public accommodations, leaving many businesses in the dark as to what the standards are for compliance. The DOJ has published an advance notice of proposed rulemaking on this topic and indicated that businesses must comply with ADA even if they only do business online. In advance of any rulemaking, the DOJ has referenced Version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0”) published by the World Wide Web Consortium (“W3C”) to provide businesses with a standard for web accessibility and compliance with the ADA.

Although WCAG 2.0 guidelines provide an initial start, many businesses do not employ in-house technology teams or have access to vendors familiar with the web the accessibility remediation process. And while some may have the resources available, other small businesses are finding out that the cost of compliance sometimes far outweighs the cost of defending a lawsuit.

O’Hagan LLC is proud to lead a national effort to assist clients around the country with this challenging issue. The Cyber Law and Employment defense team at O’Hagan LLC has developed several strategies to defend companies against claims and advise clients on impactful modifications to ensure website accessibility. We are equipped to apply these strategies throughout the country. If you have any questions or need to consult with an experienced attorney in this field, please contact Kevin M. O’Hagan at 312-422-6120 or kohagan@nullohaganlaw.com or Renee E. Coover at 312-422-6131 or rcoover@nullohaganlaw.com.