Businesses expecting claims for alleged violations of the Americans with Disabilities Act (ADA) to be “one and done” should exercise caution, as a recent decision from the U.S. Court of Appeals for the Eleventh Circuit makes clear. According to the court’s ruling, businesses that address, settle, and remediate website accessibility issues to avoid future lawsuits may still face claims — even if the business is in the process of ensuring compliance.

Dennis Haynes, a visually impaired individual, brought a suit against Hooters of America, LLC in the Southern District of Florida, demanding declaratory and injunctive relief because Hooters’ website was incompatible with his screen-reading software. Months before, Hooters had entered into a settlement agreement with a separate plaintiff, in which Hooters agreed, in part, to bring its website into compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 AA.

Hooters moved to dismiss the lawsuit filed in the Southern District of Florida on grounds of mootness, given that it was already in the process of implementing a remediation plan for its website based on the earlier settlement agreement. While the district court granted the motion to dismiss, the Eleventh Circuit reversed, determining that Haynes could pursue his action against Hooters based on its inaccessible website, even though Hooters was in the process of bringing its website into compliance with WCAG 2.0 AA.

Notably, the Eleventh Circuit raised several factors that may have led to a different result. First, the parties to the settlement agreement did not have the district court retain jurisdiction to enforce the settlement agreement, and thus the court could not force Hooters to abide by it. Second, the settlement agreement did not include a provision that Hooters must continually update and maintain its website in compliance with WCAG 2.0 AA. Third, there was nothing in the record demonstrating that Hooters had actually brought its website into compliance with the WCAG 2.0 AA.

Given this decision out of the Eleventh Circuit and the increasing number of lawsuits filed alleging website accessibility violations, the following are some critical takeaways for businesses in any industry:

• Make it a priority to review your organization’s website to ensure it is compliant with the WCAG 2.0 AA, or any subsequent updates, and implement remedial measures as soon as possible.
• Confirm that any additional content added to the website is also compliant with the WCAG 2.0 AA standard.
• Consult with counsel experienced in this field when entering into any settlement agreement in an effort to limit exposure to future ADA website accessibility lawsuits.

For more information about the Eleventh Circuit’s decision, WCAG 2.0 AA compliance, or how ADA website accessibility issues might affect your business, contact:

• Caroline J. Berdzik
• Or another member of the Employment and Labor Practice Group