The issue at hand is whether a restaurant’s website is accessible, as defined by compliance with the Americans With Disabilities Act, or ADA. While there are many uncertainties surrounding website litigation, one thing is certain: lawsuits are both time-consuming and costly for a restaurant operator. Understanding the issue, taking steps to reduce risk, and transferring risk via insurance and other means are essential steps towards getting your website compliant with the ADA—and ultimately reducing your risk of being sued.
Read on as we break down the core issues so you can better understand ADA compliance for your restaurant’s website.
A Brief Background on ADA Compliance
Historically, ADA-based lawsuits have mostly related to the accessibility of physical spaces, otherwise known as places of public accommodation. This could be a restaurant, bar, café, nightclub, hotel, or virtually any operator within the hospitality industry—and it largely focused on characteristics that made the physical establishment accessible for a disabled person. These concerns applied to ramps, doorways, tables, bathrooms, parking, and other physical design features.
With the explosion of the internet, many people have interpreted that these laws also include the public-facing website as a place of public accommodation.
Here’s What’s Clear About the Law: Operators must comply with the ADA or else be exposed to the damages inherent to an ADA lawsuit.
Here’sWhat’s Unclear About the Law: Whether a website related to an operator’s physical location is included within the meaning of a place of public accommodation.
The Department of Justice (DOJ) has not provided any specific guidance on the issue, but many courts have concluded that, yes, a website is indeed related to an operator’s physical location. Last week, the Supreme Court tacitly agreed when it let stand a ruling from the U.S. 9th Circuit Court of Appeals that found Domino’s to be in violation of the ADA by not including software that let a blind customer order off the website. “The ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind,” the appeals court wrote in January.
The impact of these decisions is that an operator within the hospitality industry should expect that their website is subject to accessibility or ADA lawsuits.
In order to ensure compliance with ADA, one might assume that operators had some standard to follow. Unfortunately, the compliance standard remains unclear. Though there has been some talk that the DOJ might finalize some guidance on this issue, no specific regulation exists today. However, there is one standard that has emerged as a baseline called Website Content Accessibility Guideline (WCAG).
What is the Website Content Accessibility Guidelines (WCAG)?
A recent Wall Street Journal article describes the issues nicely: “On an inaccessible site, screen readers can’t properly translate the content. They get stuck, simply saying ‘image’ instead of describing it, or not saying which information should be typed into blank fields on an ordering page.”
The basic idea is that a website can become accessible to the disabled by enabling features that work with website screen readers or text-to-speech readers. There are various levels under the WCAG, but the most commonly referred-to standards are called Level A and Level AA of WCAG 2.0.
To be clear, these are not technically legal requirements. They are part of an open-source web platform that aims to maintain the universality of access to the internet. Attorneys point to them as evidence in ADA-related website lawsuits.
Potentially adding fuel to the fire is the fact that attorney fees may be awarded as part of a settlement. This is significant because the only remedy available to the actual plaintiff (the disabled person bringing the suit to court) is injunctive relief: the court mandating that an operator update the website to comply or shut down. The plaintiff is not directly awarded cash compensation for damages.
The only monetary award is for attorney’s fees. As such, some attorneys see this as an easy way to generate income without having the plaintiff foot the bill. In fact, the hospitality industry has seen the same law firms and same plaintiffs repeatedly pursue ADA website accessibility litigation against operators.
How to Make Your Website ADA-Compliant & Mitigate Risks
An operator can do several things to mitigate the risk of a website ADA lawsuit, including:
Ensuring your website complies
Maintaining insurance to address the defense and settlement costs of litigation.
Ensuring Your Website Complies
Upgrading for compliance can be expensive. Many web designers and developers are aware of these issues and are prepared to upgrade websites to the WCAG 2.0 standards. However, many are not. Operators should not assume that all web designers are equally capable of addressing the issue. As the owner of the website, you need to be proactive in communicating to the designer that web accessibility is a priority for you.
There are several complexities to consider. For example, a picture of a menu may exist on a website, but unless the underlying code is enabled to allow a screen reader to ‘read’ the menu, it may not be accessible to a visually-impaired person.
Further complicating matters is the idea that the website must be just as useable for disabled persons as anyone else. Online reservation widgets, mobile orders, hours of operation, menu changes, and holiday special menus are all examples of features frequently cited in litigation as being inaccessible. With a little guidance, all can be made accessible.
Let’s take online reservations as an example. Many operators use a third-party widget to accept online reservations on their website. It’s important to validate that these third parties are in fact following the WCAG. SevenRooms Restaurant Reservation System offers restaurants a totally white-labeled widget for online reservations that is fully ADA-compliant.
Lure Fishbar in NYC uses SevenRooms’ online reservation widget to ensure ADA compliance for their website.
While the costs of maintaining and upgrading the underlying technology vary for every operator, the risks related to non-compliance can be severe. Operators should ideally have a strategy that includes maintenance and upgrades.
Not sure how your site stacks up? Start by using an accessibility tester. Here are two to consider (and there are several more out there, too!):
WAVE Evaluation Tool: A Chrome browser extension that evaluates the accessibility of your site (here)
AXE: Accessibility testing in Chrome Developer Tools (here)
Taking it a step further, you may consider engaging a consulting firm to do a full accessibility audit and can also give your marketing and web team training about best practices going forward. Here’s one to consider:
Level Access: Digital Accessibility Software, Services, Training – Level Access (visit site here).
Protecting Yourself with Insurance
As an operator, you might also want to consider obtaining insurance to protect against the risks of website ADA lawsuits, among other things. An operator may typically obtain such coverage either within the General Liability policy, within the Employment Practices Liability Insurance (EPLI) policy, or both. These are insurance policies you might already have for your business. If you don’t already have insurance, it’s always good to consult with insurance professionals who have experience in this area.
What is a General Liability Policy?
With a General Liability policy, an operator should establish whether it includes coverage for discrimination. Many General Liability policies do not. For many operators, if their General Liability coverage is first-dollar coverage (meaning no deductible), and includes coverage for discrimination, this is the best way to insure the risk.
What is Employment Practices Liability Insurance?
Under an EPLI policy, in order to have coverage for website ADA lawsuits, the policy must include 3rd party coverage. Since the policy is designed to cover discrimination and related risks of employees, potential 3rd party plaintiff lawsuits are only covered if 3rd party coverage is included. Most EPLI policies include a deductible.
This means an operator is likely to have out-of-pocket expenses related to the legal defense costs, with the total cost reaching as high as their deductible.
Include choice of counsel in your insurance arrangements. It’s best to partner with a law firm that you have a relationship with and that specializes in this legal practice area. This law firm should be listed on the policy as the “choice of counsel” unless some other language exists within the insurance policy granting the operator broad choice of counsel.
Running a restaurant is hard work. Make your life easier by being proactive in confronting potential legal challenges with thoughtful risk management strategies. The unfortunate truth is that website ADA litigation continues to challenge the industry. Understanding the issue and implementing practical risk mitigation techniques is not only feasible but necessary for today’s savvy hospitality operators.
Neil Owens is a principal at EB Cohen and is one of the leaders of the EB Cohen Hospitality Practice Group. The practice group is a thought leader in the hospitality industry, conducts various Risk Management seminars, serves as a resource to the industry, and represents many within the industry. EB Cohen is an Allied Member of the NYC Hospitality Alliance, The NY Restaurant Association, and the National Restaurant Association. Neil is a frequent contributor, speaker, and panelist for the hospitality industry.