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How to Avoid “Surf-By” Lawsuits

Leet Law Aug. 29, 2022

The Americans with Disabilities Act (ADA) was signed into law in 1990, and regulations implementing the legislation were issued the next year. The law basically sought to make physical and other accommodations for disabled persons so they could function in life more easily. For instance, businesses open to the public were required to install wheelchair ramps in addition to any stairs or other entryway impediments to people whose disabilities affected their mobility. 

As the years went by, especially here in California, a cottage ADA industry emerged. Attorneys or their associates would do “drive-by” inspections of buildings. If no wheelchair ramp or other accessible entryway were present for disabled individuals, the attorneys would file ADA lawsuits.  Businessman and lawyer discuss the contract document.

Title II of the ADA regulations of 1991 covered state and local governments, and Title III applied to businesses with public accommodations. The Department of Justice (DOJ) has long pondered the need for a regulation to cover website accessibility for the disabled, but to date, no regulation has been issued, though the department has made recommendations. 

Based on these ADA ponderings and initiatives, there is now a new cottage industry for ADA compliance, this time dealing with websites. Attorneys and associates will surf websites looking for instances where content is not accessible to the disabled, and then file a lawsuit. This cottage industry has come to be known by the moniker of “surf-by.” 

The initial surf-by efforts were directed at retailers who had websites, but the definition of public accommodations soon morphed to include any business that has a physical location open to the public and also maintains a website. If you have a physical business with a website, you can suddenly find yourself facing a surf-by ADA lawsuit. 

If you find yourself and your business confronting a surf-by lawsuit in or around San Jose, California, contact the ADA compliance attorneys at Leet Law. Our team will listen to your story, investigate the details, and weigh your legal options with you. We will fight to protect your interests and preserve your rights under the law. 

Leet Law proudly serves clients in San Francisco, Oakland, Palo Alto, and the rest of the Bay Area. 

ADA Compliance for Websites 

So far only businesses with a physical presence in addition to an online presence are fair game for website accessibility lawsuits. If you fall into that category, you may want to follow the recommendations of the DOJ that it gave to state and local governments. 

The recommendations of the DOJ, as put forth in a May 2022 post on the ADA.gov website, follow the “Web Content Accessibility Guidelines” (WCAG) 2.0. WCAG 2.0 has three levels of compliance—A, AA, and AAA—A being the minimum standard. The DOJ recommends businesses adopt at least an AA standard. Since WCAG 2.0 is not a regulation, adherence to its standards is referred to as “conformance” rather than compliance. 

Examples of Website Accessibility Barriers 

Disabled persons use assisted technology devices to help them understand what’s on a web page. For instance, an electronic reader will scour the text and relay it in spoken language. Other common barriers include: 

  • Poor Color Contrast: If the page uses a light text color on a light background, people with limited vision or color blindness may not be able to read it. 

  • Use of Color to Provide Information: Using color to convey or emphasize certain information may prevent those who are color blind from understanding what’s required. The reader will not distinguish colored text from black text. For instance, using red to indicate a field that must be filled in on a form may not be recognized. 

  • Lack of Text Alternatives (Alt Text): Images on a website should include “alt text” describing the image so the electronic reader can pick it up. 

  • No captions on videos: Those who are hard of hearing or deaf will not be able to follow videos unless they contain captions for what’s being spoken. 

  • Mouse-Only Navigation: A website should be fully accessible just through a keyboard. People with disabilities may not be able to use a mouse or trackpad to navigate the site. 

Avoiding a Surf-by Lawsuit 

A good offense is the best defense when it comes to ADA lawsuits. Ensure your website checks all the boxes on WCAG 2.0 conformance and addresses and corrects the potential barriers listed above. You must make sure every page, image, video, and piece of content on your site is accessible to the disabled. 

Trusted & Experienced Guidance 

You certainly do not need the sudden arrival of an ADA lawsuit because your website has accessibility issues. You have enough on your plate to run your business. However, if you are served with a notice of pending legal action, contact Leet Law immediately. Our ADA compliance attorneys can work with you to resolve the situation before it ends up in a courtroom. If it does go to court, we will fight to protect your interests and exercise your rights. Leet Law proudly serves businesses in and around San Jose, California, including San Francisco, Oakland, Palo Alto, and everywhere else in the Greater Bay Area.