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Robert Jahoda, a visually impaired individual, sued DraftKings for lack of accessibility to its website. Jahoda claims that the DraftKings website is largely incompatible with screen-reading software typically used by blind individuals to access sites on the Internet. DraftKings, a giant in the daily fantasy and sports betting industries, has accessibility measures in place. However, as it is quickly finding out, website accessibility guidelines are constantly changing and, as such, very demanding to keep up with.
The Accessibility Guidelines
Website accessibility lawsuits are brought under Title III of the Americans with Disabilities Act (“ADA”). Title III “prohibits discrimination on the basis of disability in the activities of place of public accommodations.” When the Civil Rights Division of the US Department of Justices investigates ADA claims, it relies on the Web Content Accessibility Guidelines (WCAG). These guidelines are published by organizations whose sole purpose is promulgating international Internet standards. Currently, WCAG 2.0 is the standard adopted by most investigating agencies, while WCAG 2.1 is a recommendation. However, these guidelines are always being updated, making it increasingly challenging for companies to continue to comply. Every year there, the United States sees an increase in accessibility-related litigation. For example, from 2020 to 2021, there was a 14.3% increase in website accessibility lawsuits.
The Jahoda Lawsuit
Mr. Jahoda, a Pennsylvania resident, is completely blind. Like many other blind individuals, he relies on screen reader software that produces auditory cues to help him navigate through Internet pages. Mr. Jahoda alleges that despite DraftKings’ attempts to comply with the ADA, its website remains inaccessible for him and 7.4 million other Americans who rely on screen reader software. In his complaint, Mr. Jahoda seeks attorney fees, nominal damages, and a judgment ordering that 13 changes be made to DraftKings’ compliance policies. Among these changes are: 1) DraftKings retaining a qualified accessibility consultant, with appointment pending approval from Mr. Jahoda; 2) DraftKings incorporating ALL of the consultant’s recommendations within 60 days of submission; and 3) Oversight by Mr. Jahoda, his counsel, and their experts for up to two years to verify that DraftKings’ website and accessibility policies meet their criteria. Included in Mr. Jahoda’s prayer for relief is that DraftKings will be responsible for all costs associated with meeting his 13 compliance demands. The District Court has yet to rule in the case.
The Current Legal Landscape for Website Accessibility
Mr. Jahoda’s claim is characteristic of many website accessibility lawsuits filed every year. The complex and ever-changing nature of the WCAG creates an immense number of opportunities for ADA plaintiffs. In fact, more than 22% of all website accessibility lawsuits filed in the United States in 2021 were filed by only five plaintiffs. There is currently a circuit split as to whether websites qualify as “places of public accommodation” under Title III of the ADA. But until this split is resolved, and the answer is an unequivocal “no,” ADA plaintiffs and their counsel will continue combing the Internet for non-compliance.
Given the ever-mounting litigation related to website accessibility, it is important that website operators consult with experienced Internet counsel to avoid being named in a website accessibility lawsuit.
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