Congressmen aim to help retailers avoid ADA website lawsuits

A bipartisan bill in Congress addresses a problem that has cost many Home Furnishings Association members thousands of dollars.

It’s called the Online Accessibility Act. If it becomes law, it would bar plaintiffs from filing legal actions before businesses had time to fix website deficiencies and government agencies could seek administrative remedies.

Consumer-facing business websites and other online platforms must comply with the Americans with Disabilities Act. This means, for example, that for shoppers with visual impairment, information displayed on a website must be translated into audio. That is difficult to achieve, especially for small businesses with limited resources. Yet, attracting customers with online displays is increasingly important for furniture stores.

Many HFA members, large and small, have received letters from lawyers claiming their visually impaired clients could not fully access information on their websites. These letters threaten lawsuits unless corrections are made and settlements paid. Although settlements are never publicly disclosed, the costs of resolving the threats can amount to tens of thousands of dollars. That includes website upgrades and legal fees.

Settlement cost HFA member thousands of dollars

Walker Furniture in Gainesville, Fla., went through this ordeal last year. When General Manager Jeff Smith read the lawyer’s “demand letter,” he immediately called his web provider and directed him to find and correct deficiencies.

“We just wanted an opportunity to satisfy our customers,” Smith said. At the time, he said he would drive to a customer’s home or do anything else he could if he were asked for help using the website. Ultimately, it cost Walker Furniture a few thousand dollars to avoid a lawsuit.

“Last year, over 2,000 website accessibility lawsuits were filed by plaintiffs alleging that certain websites were not ADA compliant,” said U.S. Rep. Ted Budd (R-N.C.,), who introduced the Online Accessibility Act. “This bill solves the problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”

Create a predictable regulatory environment

“A predictable regulatory environment is critical for small businesses,” Rep. Lou Correa (D-Calif.) added. He is the primary co-sponsor of the legislation. “Unfortunately, when it comes to website compliance, these regulations aren’t clearly defined. This bill ensures that small businesses know what they need to do to be ADA compliant.  It’s a simple, bipartisan and common-sense solution that will put this problem behind us.”

Budd and Correa are right. Their bill would correct a Catch-22 dilemma for furniture retailers and other businesses. They are required to make their websites ADA-compliant, but there is no mandatory standard detailing what compliance requires. The U.S. Department of Justice, which administers the ADA, refuses to set those rules.

[Walker Furniture, HFA appeal to Washington for ADA clarity]

The bill would require “substantial compliance” with the voluntary Web Content Accessibility Guidelines 2.0 Level A and Level AA standard – or subsequent updates, revisions and replacements – published by the World Wide Web Consortium.

Allow ‘alternative means of access’

However, a business that did not meet that standard could provide an “alternative means of access.” This isn’t spelled out in the bill. Instead, the legislation would direct an independent federal agency, the Architectural and Transportation Barriers Compliance Board, to define “substantial compliance” and “alternative means of access.”

Jeff Smith is general manager of Walker Furniture in Gainesville, Fla.
Jeff Smith, general manager of Walker Furniture in Gainesville, Fla.

Some furniture retailers offer to provide free personal assistance to shoppers who have trouble gleaning information from their websites.

Smith put this statement on Walker Furniture’s website: “If you find any aspect of our website inaccessible or difficult to use please contact us at 352-372-4421 and we will personally assist with your furniture needs during our normal business hours.”

Many other HFA members post similar offers to help.

The bill also would direct the Justice Department to set procedures for receiving and investigating complaints of violations. But no complaint could be filed unless a business was first notified of a complaint and failed to correct it within 90 days. Only then would an investigation by the Justice Department begin. If evidence of a violation were found, the Justice Department could launch a civil action in the appropriate federal court.

If the court determined that a violation occurred, it could grant “equitable relief,” order monetary damages and assess a penalty of up to $20,000 for the first offense and up to $50,000 for each additional violation. No punitive damages would be allowed, and the court could give consideration to “any good-faith effort or attempt to comply” with the law.

The goal is accessibility, not lawsuits or settlements

If the Justice Department took no action, an aggrieved person then could bring a civil suit in federal court.

The bill makes clear that businesses may not discriminate against anyone who has a disability or deny such person “the full and equal benefits of the services of a consumer-facing website or mobile application.” The ADA requires businesses to provide physical access to all customers, and it has been interpreted that a website is an extension of the business and equally subject to the ADA. HFA members must make their websites accessible.

People who are visually impaired purchase furniture, and they should be able to access a furniture store website to the same extent as a sighted shopper. The Online Accessibility Act demands compliance with the ADA and provides fair and reasonable guidelines to help businesses achieve accessibility.

The bill will not pass in the current Congress, but the HFA encourages Reps. Budd and Correa to introduce the Online Accessibility Act again in 2021. HFA also asks members to contact their representatives and urge their support.

[Problem leads to role on Government Relations Action Team]

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