It’s one thing to have a physical restaurant compliant with the American Disabilities Act. But a number of restaurants, big and small, are painfully discovering something else that needs to be compliant: their websites.
Some of the biggest chains—from Domino’s to Outback Steakhouse—have faced unwelcome lawsuits claiming that their websites failed to equally accommodate consumers who have visual impairments. Hundreds of what the National Restaurant Association calls “drive-by” lawsuits have been filed over the past few years, leaving many restaurant operators faced with a difficult financial decision: settle for thousands of dollars or take the costly risk of going to court at a potential expense of many thousands of dollars.
Making that call isn’t simple, in part because, when the ADA was passed in 1990, websites didn’t exist, says Angelo Amador, senior vice president and regulatory counsel for the NRA. “Without clear guidelines, how do you come up with compliance?” he says.
As a result, some of the restaurant industry’s key growth areas—online ordering and apps—have been turned on their head by law firms eager to cash in on industry uncertainty and legal confusion over what the ADA requires of restaurant websites and apps. Guidelines from the U.S. Department of Justice are crystal clear for physical restaurant buildings, but until specific ADA guidelines related to website accessibility are completed, there simply is no solid guidance. That leaves most restaurant owners asking two key questions:
- What can I do to avoid a lawsuit?
- What should I do if I am sued?
To avoid a lawsuit, the DOJ has encouraged all businesses to follow its detailed, voluntary Web Content 2.0 Guidelines (WCGA), which are quite technical. Here’s the translation:
- Perceivable. Provide text alternatives for nontext content (such as braille, speech, symbols or simpler language), as well as alternatives for time-based media. Make it easier for users to see and hear content, which includes separating the foreground from the background.
- Operable. Make all functionality available from a keyboard. Provide users enough time to read and use content. Provide ways to help users navigate, find content and determine where they are.
- Understandable. Text content needs to be readable and understandable, and pages must appear and operate in predictable ways. This also means helping users avoid and correct mistakes.
- Robust. Maximize compatibility with current and future user agents, including assistive technologies.
Still, not every restaurant is willing or able to follow guidelines that are not codified in law. In the meantime, the NRA offers suggestions to concepts that receive a letter threatening an ADA website lawsuit.
First, check with other restaurants. It’s very possible that multiple concepts in the same area got the same letter; it might be beneficial to compare strategies and possibly share attorney costs, says Amador. At the same time, operators should learn about the plaintiff. An internet search can reveal information about the party suing or threatening to sue, says Amador.
At the same time, operators should carefully review the allegations. Sometimes, with these batch letters, operators might not be in violation at all. Amador also suggests brands contact their insurance company. For those moving forward with legal action, there’s a chance that coverage for the lawsuit is available.
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