In recent years, businesses have been inundated with a wave of serial litigation wherein private plaintiffs have argued that websites that are insufficiently compatible with screen reading software are in violation of Title III of the Americans with Disabilities Act (“ADA”). The typical allegation in such cases is that the plaintiff could not read the website and, as a result, could not access the goods and services offered by the company. These private plaintiffs have taken advantage of the current ambiguity in the law to bring multiple lawsuits. At least two ADA website accessibility claims are on appeal before the Ninth and Eleventh Circuits to hopefully provide clarity to covered entities on what current obligations, if any, they have to make their websites accessible to persons with disabilities.

The newest wave of these lawsuits appear to target any business that contains an online job portal for individuals to browse, review, and/or apply for open positions. The U.S. Department of Justice has issued informal guidance that appears to suggest companies who do not program their job postings to be readable with screen reading software may violate Title I of the ADA which prohibits discrimination in hiring decisions. Potential plaintiffs that are blind and/or visually impaired may use this guidance to argue that this is discriminatory because they are denied the opportunity to browse or apply for open positions.

Title I of the ADA prohibits covered entities from discriminating against an individual with a disability with respect to job application procedures. See 42 U.S.C. § 12112(a). Similarly, California’s Fair Employment and Housing Act prohibits employers from discriminating against potential applicants on the grounds of a physical or mental disability. See California Govt. Code § 12940. Violation of these statutes exposes potential employers to claims of injunctive relief, damages, and attorneys’ fees.

At this time, it is unknown how courts will come out on these claims. Until there is clarity on the law, businesses should consider how a blind and/or visually impaired person can independently browse and review job postings. Good practice would be to ensure that any online job boards are programmed to be compatible with most commercially available screen reading software to ensure that blind and/or visually impaired persons are not inadvertently denied the opportunity to review and apply for those jobs.

We will keep monitoring these cases to see how the case law develops.