You might ask: what does the Americans with Disability Act (ADA) have to do with selling wine?
Plenty, is the answer from Barbara Snider, at Hinman & Carmichael, LLP.
According to Snider, “ There is an on-going ADA regulations battle being waged against commercial websites ; including those operated by wineries and other alcoholic beverage industry members.”
Many small companies have been targeted by ADA compliance lawsuits lately, but Snider says, “Wineries and alcoholic beverage industry members are the new targets…” and it’s happening online.
It’s one thing to make the winery visitor center and tasting room ADA-compliant, but how do you make a winery website ADA compliant?
As written, the ADA law requires no notice before a lawsuit is filed against a company for non-compliance. The law provides no time for a company to take action before a lawsuit is filed, and it offers no real defense to a company after a lawsuit has been filed. If you ask Snider, the situation has created big problems; she says, “…an explosion of demand letters threatening lawsuits (or actual lawsuits) have been lodged against all types and sizes of companies.” Mainly, she tells us, the companies are cited for maintaining a website which “is not ADA compliant for the visually impaired.”
Enacted in 1990, under four sections or Titles, the ADA prohibits employment discrimination; prohibits discrimination by government and other public services organizations; applies to all public accommodations and services provided by private companies; and includes in the fourth Title a few miscellaneous prohibitions and provisions. The third, Title III deals with accommodations services provided by companies. This is where the many threats of lawsuits and lawsuits land.
Snider says the law provides a list of “12 categories of business and commerce that must assure there is no discrimination in access for persons with disabilities to goods and services.” (She means access to goods and services.)
Because it had been adopted almost 30 years ago, no mention of websites appears in the ADA law, but it does prohibit companies from putting up communication barriers , and that is how the lawsuits against websites make their way to court. Working against wineries is the fact that the federal agency responsible for establishing ADA guidelines for websites, the Department of Justice (DOJ) has done nothing of the sort. Over the past year, courts in New York and California just about have had to make up their own guidelines as cases have come along.
Aiming toward ADA compliance Snider recommends wineries draft and post an “accessibility statement” to their websites and be sure that new content to the site is vetted as ADA compliant. Possibly to cut off the threat of a lawsuit, she recommends that to give consumers access to a quick response wineries should provide a phone number or email address on the site—it is surprising how few websites for any type of companies follow that advice.
Still, the vagueness of the ADA law in connection with websites is sure to continue to attract counsels with an eye toward payouts for plaintiffs. It’s akin to the way a Midwest attorney a few years ago latched onto confusion in wine shipping rules to initiate lawsuits against out-of-state wine retailers selling from their websites.
Until Congress does something about incorporating websites into ADA law, and until DOJ creates guidelines, or whichever comes first, look for more wineries to do things like make available to screen readers the “language” used to develop their websites, or provide readable text to describe images and provide captions for the hearing impaired.
According to Snider, the goal is to make navigating a winery website mainly through the keyboard in combination with screen-reading technology.
It certainly has become a brave new worldwide web, er, Internet.