This article was distributed as a "Red Alert" email to all members of the Florida Police Chiefs Association on April 25, 2019.

The new battleground for plaintiffs filing Americans with Disabilities Act (“ADA”) accessibility cases involves claims of barriers, not in physical space, but in cyber space. Lawsuits claiming that public webpages are not accessible to disabled users are being filed in Florida at an alarming rate. So far, most of these suits have been directed at private businesses, such as grocery stores, restaurants, retail stores, shopping centers, and hotels, known as “public accommodations” under Title III of the ADA.  Increasingly though, plaintiffs are targeting the websites of public entities, which include “any State or local government,” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 28 C.F.R. § 35.104. As such, law enforcement agencies are at risk for such claims.   

These lawsuits are different than those filed against private businesses, as the claims against public entities are brought pursuant to Title II of the ADA (and/or the Rehabilitation Act, which applies to programs receiving federal funding).  Title II of the ADA provides that no person with a qualified disability shall “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.  Therefore, a primary difference between Title II and III claims is that Title III claims require that there be a “place of public accommodation,” while Title II claims have no such requirement.  Instead, Title II applies to the “services, programs, or activities of a public entity.”  Consequently, plaintiffs assert they are being denied access to the public entity’s online content, which they say constitutes its programs, services, and activities.

In the federal courts of Florida alone, plaintiffs have filed over eighty ADA website lawsuits against counties and cities.  To date, plaintiffs have brought two cases against sheriff’s offices. There are reports that other law enforcement agencies and officials have received pre-suit demands from attorneys, or letters from individuals purporting to be disabled and requesting some type of accommodation to obtain website content they claim is inaccessible. The majority of the cases are brought by individuals who have vision and/or hearing impairments, alleging that the website fails to be compatible with screen reader software or fails to have closed captioning for videos. The former becomes particularly troublesome for public entities, which tend to have hundreds or sometimes thousands of documents posted on their websites — agendas, minutes, calendars, etc. — often in a format not accessible to screen readers.      

Presently, courts are interpreting how Title II of the ADA applies to public entities’ websites, often with inconsistent results. For example, there is no consensus as to whether public entities must make archived information accessible, or whether the requirement applies only to documents pertaining to current and future issues and events. Also, there is disagreement as to whether the plaintiff must actually partake of the public entity’s services and programs, or whether the plaintiff’s representation that he is interested in learning about the services and programs or plans to visit the area is enough to state a claim. Finally, the courts are divided on whether the Title III case law has any application to suits against public entities. The body responsible for enforcing the ADA, the U.S. Department of Justice (DOJ), has delayed its proposed amended regulations to the law, which would provide some guidance on the issues.  As a result, defendants remain in a state of uncertainty, forced to manage the risks that their websites bring. Some are even considering taking down their websites altogether.

Given the trajectory of ADA website accessibility claims, law enforcement executives should immediately become familiar with the issues and the ways in which they will be impacted by such claims. When feasible, an ounce of prevention in this area can offer great value down the line when serial ADA filers come calling. Law enforcement executives should consult legal counsel who can explain potential strategies, including retaining a digital accessibility expert and voluntarily adopting the standards of the Web Content Accessibility Guidelines (WCAG) version 2.0, Level AA, which the federal government adopted as the guidelines for its websites.

Nicole Sieb Smith is a partner in the Tallahassee office of RumbergerKirk, representing national and local businesses and institutions in diverse litigation matters with a focus on employment defense and commercial matters. She is an experienced speaker on the topic of website accessibility, and is able to assist clients to identify the legal considerations involved in auditing and remediating web content and to retain appropriate consultants.