In the “SKU View” series, Food Entrepreneur is tapping the expertise of mentors and startup founders at SKU, a consumer products accelerator based in Austin, Texas, to deliver insights on issues that affect early-stage food and beverage brands.

AUSTIN, TEXAS — The consumer products industry has been the target of recent lawsuits for website violations of the Americans with Disabilities Act (ADA).

“Thousands of companies are being sued each year because their websites are supposedly not compliant,” said David Stein, a partner with Stein & Nieporent LLP. “Once they are sued, it routinely costs them $10,000 or more to resolve the lawsuits. Anyone who operates a website must be cognizant of ADA requirements.”

Mr. Stein has served as a resource for small and midsize companies who have been sued. An expensive settlement could crush a cash-strapped startup. Mr. Stein warned, “Ignorance is not a defense nor is ‘substantial compliance’ with the ADA.”

“It’s a real scam, and the law firms that go after companies for ADA compliance are lawsuit factories, filing 100 to 200 lawsuits a day,” he added. “All they want is a quick $5,000 to $25,000 settlement and have no intention of going to court.”

Mr. Stein shared how brands can understand whether a website is in compliance and what steps to take to ensure it is.

Food Entrepreneur: Can you explain ADA compliance? 

David Stein: The Americans with Disabilities Act requires that businesses be accessible to people with disabilities. People are probably familiar with requirements that buildings be wheelchair accessible, but the ADA applies to all disabilities, including, for example, vision and hearing impairment.

In the case of a business with a website, that means that the website must be compatible with the special software that visually impaired people use to access the web.  However, what it means to be “ADA compliant” is hardly clear. Unlike in the context of bars, hotels, restaurants, and the like — where the Department of Justice has instructed business owners explicitly on what is required for ADA compliance — the DOJ has not given any instructions in the context of business websites.

Instead, for lack of any other guidance, a private entity came up with a set of guidelines called the “WCAG 2.1 AA Guidelines,” and for lack of any other guidance by the DOJ or the courts, these seem to be the standard for ADA compliance when it comes to websites. The use of “widgets”/”overlays”/”plug-ins” will not satisfy accessibility requirements and will invite litigation.

How is this affecting consumer brands with e-commerce sites?

Mr. Stein: Over the past three years, lawsuits against e-commerce sites by the opportunistic lawyers who file ADA website accessibility cases have exploded in number. Hundreds of these lawsuits are being filed every month. Many website owners are unaware that their website has ADA compliance requirements, and even worse, many others are aware of such requirements, have taken measures to become compliant, only to get sued for being non-compliant.

Does any of this apply to emerging brands or only to larger companies?

Mr. Stein: Title III of the ADA concerns public accommodations, and it applies whether the company is large, small or in between. Many people are confused about the applicability of the ADA to a small company because Title I of the ADA, which concerns employment, only applies to a business with 15 or more employees. But again, Title III has no such limitations. In our own practice over the past two years, we have represented some companies with many employees and others as small as a mom-and-pop business selling goods out of their own living room. The plaintiff’s lawyers like to target the smaller companies who they think will not have the resources to fight these lawsuits.

How can a brand ensure its website is ADA compliant?

Mr. Stein: Although there are online tools for analyzing websites for compliance, a brand would be well-advised to contract with a web designer or remediation company that knows what it takes to be ADA compliant; such a company can provide an audit to determine whether a company’s website is compliant. Website owners must remain vigilant because changes to their websites can cause the sites to fall out of compliance if they are not constantly monitored.

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