Should Your Software Company Be Concerned about Product ADA Compliance?

If your software company leases office spaces, then you may have some familiarity with the legal issues involving whether or not the space is compliant with the Americans with Disabilities Act (the “ADA”), but have you ever considered whether your software product itself is ADA compliant?

If the answer is no, then it may be time to allocate some resources toward the issue of ADA compliance.

A California judge last month granted summary judgment to a blind plaintiff who had filed a lawsuit against Bag’n Baggage on the grounds that he was unable to shop online at the company’s website because the website lacked features for aiding the disabled.   According to The Wall Street Journal, Bag n’ Baggage was ordered to update its website, pay the plaintiff Four Thousand Dollars ($4,000.00) in damages, and pay attorneys’ fees which are expected to exceed One Hundred Thousand Dollars ($100,00.00).  Forbes reports that the plaintiff in the Bag n’Baggage case has filed nine lawsuits in San Bernardino County Superior Court and two in federal court, presumably on the same issue.

However, according to Forbes, this California ruling is not an isolated case, and it comes just a month after a federal judge ruled against Harvard University and the Massachusetts Institute of Technology  in similar cases, rejecting their arguments that the cases should be dismissed or stayed pending DOJ regulations being adopted.  Tech Crunch also reports that the Department of Justice itself has launched investigations which included the issue of website accessibility against the NewSeum in Washington D.C. and the Quicken Loans Arena and has settled with several universities:  Florida State and the University of Montana.  In addition, Tech Crunch reports that the Department of Justice has already entered into settlements with the online grocer PeaPod and H & R Block, which have required the businesses to make applications accessible to vision-impaired users.

According to Tech Crunch, given the fact that law firms are already sending out demand letters threatening to sue unless the business makes their website ADA compliant, it is not much of a stretch to anticipate that the same firms will soon start focusing their efforts altogether towards software and mobile applications.

What can software companies do to protect themselves from potential ADA claims about their software products?  Tech Crunch suggested that companies arrange for testing their products with WCAG 2.0 and Section 508 of the Rehabilitation Act and test usability by built-in screen readers, as well as actively consider accessibility in the design plan.  Obviously, software companies need to be following legal decisions on the issue of ADA compliance in the Internet and software industries and take steps to act on the guidance that comes out of those decisions relating to the ADA compliance issue.

The good news for software companies is that courts have not found uniformly against businesses on the issue of websites being ADA compliant, so in the event your company is sued, there is some precedent that may provide a viable defense to your business.  Forbes reports that the U.S. Court of Appeals for the Ninth Circuit held in 2015 in Earll v. eBay  that ebay.com, was not a “place of public accommodation” under the accessibility requirements of Title III of the ADA and that it came to the same conclusion in 2015 in Cullen v. Netflix, Inc.  Forbes also reports that the Third and Sixth Circuits found in the 1990s that the ADA only applied to actual physical structures.  However, at the same time, Forbes acknowledges that the Eleventh Circuit, the First Circuit, and the Seventh Circuit have reached the opposite conclusion.

So, the bottom line, is that for now at least, software companies need to be proactively adopting plans to make their software products accessible to the disabled, and to be taking steps to maintain compliance with federal and state laws applicable to accessibility issues.  If your software company has not been considering how the ADA or similar state laws might apply to its products, now is the time to start evaluating these issues.

Kristie Prinz

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