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Omaha Steaks among companies facing ADA compliance lawsuits over websites

Legal experts are calling it the next frontier when it comes to business compliance with the Americans with Disabilities Act: the Internet.

Lawsuits are proliferating against business websites — civil suits citing lack of compliance with the law requiring companies to not discriminate against people with disabilities. In brick-and-mortar cases such as those involving stores, restaurants and workplaces, the objection is often over restroom ramps and parking spaces.

But when it comes to the Internet, it is usually a matter of visual aspects. This month, Omaha Steaks was sued by a nonprofit advocacy group that alleges the company’s website isn’t compatible with screen-reading software that converts text to audio, the method by which blind and visually impaired people navigate the Internet.

“Screen reader software provides the primary method by which a blind person may independently use the Internet,” reads the suit filed this month in U.S. District Court in Pittsburgh. “Unless websites are designed to be read by screen reader software, blind individuals are unable to fully access websites and the information, products and services available through the site.”

The lawsuit, filed by the advocacy group Access Now and three blind people, cites 13 “access barriers” for blind people on OmahaSteaks.com. They include not providing a “text equivalent for every non-text element” and that “text cannot be resized up to 200 percent without assistive technology.”

The suit asks for a court order requiring Omaha Steaks to comply with the Americans with Disabilities Act and payment of attorney fees for Access Now and the people who filed the suit.

Omaha Steaks declined to comment on the matter, citing the pending nature of the litigation, the company’s staff attorney said.

But the employer of more than 5,000 people during the peak holiday season has spoken on the matter in its own court filing. The company filed papers in U.S. District Court in Omaha late last month saying Access Now in January sent a letter outlining its objections and offering to not file a lawsuit “in exchange for payment of certain attorney fees and expenses.”

The letter from the Access Now attorneys, the lawsuit said, proposed the Pittsburgh law firm Carlson Lynch Sweet & Kilpela would “represent Omaha Steaks for the next two years to … assist and cooperate in the prevention of the Additional Potential Website Claims” against Omaha Steaks.

The Pittsburgh firm didn’t return requests for comment.

The Omaha Steaks filing says Access Now has filed 18 similar lawsuits. The company asks a judge to clarify the legal standard that applies in the case and determine if the suit should progress.

The legal standards are somewhat unclear, some ADA lawyers say. Joe Lynette, a lawyer for the Jackson Lewis law firm who defends companies against ADA claims, said the U.S. Department of Justice in 2010 issued a notice on regulations governing website access as it applies to people covered by the disability law.

A final determination has been pushed back until next year, Lynette said. And now, he said, the policy of the Trump administration that two old regulations must be scrapped for every new one adopted puts even that in jeopardy.

“What is clear is that what started out as a trickle of litigation has turned into a growing wave,” Lynette said. “Certain industry groups view them as a nuisance and are taking an aggressive stance.”

In practical terms, the controversy lies within the computer code on which websites operate, the instructions that govern the operation of elements such as “buy now” buttons, drop-down menus and the appearance of graphics when rolled over by a mouse or other navigation device. Generally speaking, to be ADA-compliant for the blind, such elements must operate as easily with screen-reading software as they do when clicked on with a mouse by a person with clear vision.

Richard Baier, president and chief executive of the Nebraska Bankers Association, said “a couple” of Nebraska financial institutions have been contacted regarding their websites’ compliance with ADA requirements.

He said the organization and its member institutions are aware of the issues and are “working diligently” with IT vendors to be sure their websites meet the needs of visually impaired customers.

As for Omaha Steaks, the company says in its court filing that amid the ambiguity of how the Justice Department will enforce the website aspect of the ADA, its has hired a specialist company to assist with compliance and that progress is being made.

“Omaha Steaks asserts that its ongoing efforts at compliance are sufficient under the guidelines, and that it should not be held to a higher standard or earlier deadline than federal agencies must meet,” the company said in court papers.

Jim Butler, an ADA defense lawyer for the Jeffer Mangels Butler & Mitchell firm in Los Angeles, said, “The average business owner isn’t focused on website compliance with the law.”

But everyone with a commercial website should. Butler said the law applies as evenly to a tiny bed-and-breakfast as it does to the largest international hotel chain. He specializes in representing hotels, whose websites are among the most heavily trafficked commercial ones.

Butler said it is easy to believe in the concept of making sure websites are accessible to everyone. But it is another, he said, when the lawsuits are “excessive and abusive” and the law firms handling the cases take on the appearance of “extortion artists.”

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