Website Accessibility Lawsuits: Disabled Prospective Employees Sue for Inaccessible Online Application Processes

By Christine Samsel Attorney, Brownstein Hyatt Farber Schreck | December 30, 2018

Co-authored by Jonathan Sandler, Shareholder, Brownstein Hyatt Farber Schreck

While most employers are used to addressing requests for accommodations from employees with disabilities, they may be surprised to learn that they may be targets for failing to provide accommodations before employment actually begins. But they are targets, in the context of one of the fastest-growing areas of litigation for the plaintiffs' bar-websites.

We previously wrote about the susceptibility of the hospitality industry to lawsuits under the Americans with Disabilities Act ("ADA") related to website accessibility, a relatively new trend. Those claims typically are based upon potential patrons' inability to access features of a facility's website (i.e., due to incompatibility with screen reader software), the failure to identify accessible features or amenities on the websites (e.g.,disabled accessible rooms, pool lift, etc.), or the inability to book accessible rooms online.

Recently, though, website accessibility lawsuits have begun to crop up in a different context-claims by prospective employees for inaccessible online job search and application processes that render them unable to browse and apply for open positions. In just the first nine months of 2018, dozens of cases have been filed against a variety of companies for inaccessible job search and application processes, often in state court, and particularly in California. A plaintiffs' lawyer who specializes in accessibility lawsuits indicated that Virginia and Florida will be the next targets for these types of cases.

Why Are So Many of these Cases Being Filed Now?

Under the Obama administration, the Department of Justice ("DOJ") expressed its intention to adopt the WCAG-2.0, Level AA guidelines, a set of standards developed through a private group, the World Wide Web Consortium, to make web content more accessible to people with disabilities. At that time, the DOJ commenced the rulemaking process to issue regulations regarding websites, and it is likely that this rulemaking process had a chilling effect on website accessibility lawsuits. However, with the DOJ's December 2017 withdrawal of its Advanced Notices of Proposed Rulemaking related to website accessibility (purportedly to evaluate whether promulgating such regulations was necessary and appropriate), the floodgates were opened, and website accessibility lawsuits are now proliferating as plaintiffs' attorneys seek to fill the void.

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