The recent passing of former President George H. W. Bush was an opportunity for Texans to look back on his career of public service with pride. One of his administration's most significant achievements was the passage of the Americans with Disabilities Act of 1990, passed with bipartisan support to protect individuals with disabilities. The ADA's employment sections—adding disability status to the list of “protected characteristics” under federal anti-discrimination law, and its public accommodations provisions, removing physical barriers to access—are viewed as significant achievements by advocates for the disabled. After 28 years, the ADA is still going strong.

Life was different in 1990 when the ADA was passed. Faxes were commonplace, but email was rare. The internet was just emerging. The idea of online shopping was something out of “Buck Rogers,” and Jeff Bezos (who went to elementary school in Houston) was still three years away from creating an online bookstore called Amazon.

Few believed in 1990 that Title III of the ADA, governing accessibility to public accommodations, would cover “virtual” public accommodations like websites. But in the past several years, there has been an onslaught of ADA lawsuits against companies based on alleged inaccessibility of websites.

As more business is done online, technology makes it possible for a blind person to have on-screen text from websites read out loud and for a hearing-impaired person to access captioning for online video. And persons with limb disabilities or paralysis may find using a mouse impossible, but other “input” devices can solve this problem. These technologies only work, however, if the websites are designed in a way to take advantage of these accessibility tools. Heavily media-intensive websites with all the ”bells and whistles” usually are embedded with computer code that enables access using these programs, however, not all websites provide access to these technologies.

Thus far, it appears that the lawyers pursuing these lawsuits alleging that websites are not ADA-compliant are focused on larger businesses like hotels, schools and retailers. But these lawsuits can be frustrating to even larger companies.

ADA public accommodation lawsuits are sometimes brought by disabled individuals who are confronted with unnerving obstacles preventing their full use of a public accommodation and who seek legal redress through the court system. For example, a grocery store without available access for wheelchairs might be targeted with an ADA Title III suit. The ADA's private right of action was created for just these circumstances.

But some lawyers—particularly in Florida, New York and California, and more recently Texas—have made ADA public accommodation suits something of a cottage industry. Often, a single lawyer and sometimes the same disabled individual will file dozens of suits against a host of companies. Sometimes the named plaintiff has actually been to the public accommodation personally, sometimes not. Thus, these ADA complaints brought by unknown plaintiffs who may or may not have ever truly sought access at an establishment have become known as “drive-by” ADA lawsuits. Now that companies' websites have been targeted for alleged noncompliance with the ADA, the term “surf-by lawsuits” has been coined by frustrated businesses and their lawyers.

These lawsuits have received negative attention from the media (“60 Minutes” featured a story on these cases in December 2016) and from judges irritated that their courts are being used to pursue what they view to be frivolous claims. For example, U.S. District Judge David Ezra issued an 86-page order sanctioning an Austin lawyer who filed nearly 400 cases against Austin businesses. These suits are particularly frustrating to disability advocates, who usually view the repeat filers as a nuisance with no real interest in obtaining accessibility improvements.

Businesses, too, have fought back. When faced with the “drive-by” or “surf-by” ADA Title III suits, many companies find it easier to avoid legal fees by paying to settle the case for a few thousand dollars, but others have resisted, even pursuing the kind of sanctions issued by Ezra against lawyers indiscriminately filing these claims.

The political world has taken notice as well. By a 225-195 vote, the U.S. House of Representatives passed legislation in February 2018 that would substantially amend the ADA to force prospective plaintiffs to first provide written notice of noncompliance to public accommodations before filing suit. The proposed amendments to the ADA would then provide the company 60 days to come up with a plan to address the plaintiff's concerns. Disability advocates are worried that the ADA Education and Reform Act would essentially gut the public accommodation provisions of the ADA; they would prefer to see frivolous “surf-by” lawsuits handled by local bar associations or judges. So far, the senate has failed to act on the measure, so it is unlikely to become federal law anytime soon, especially given the results of the midterm elections.

So what should a business owner with a website do to ensure compliance? Unfortunately, there is no magic solution, and most fixes can be costly. Some courts have taken to ordering that companies ensure their sites are compliant with Website Content Accessibility Guidelines version 2.1, established by the World Wide Web Consortium. But WCAG is not legislation, and it isn't even a regulation issued by a government agency. And the Department of Justice has delayed issuance of rules governing website accessibility for several years.

WCAG's underlying goal is websites that “POUR”—that is, sites that are perceivable, operable, understandable, and robust. A company's IT department or contractor can run basic applications like the Web Accessibility Evaluation Tool, but these online apps are not foolproof. Moreover, some web designers have suggested that the WCAG standards are too difficult and expensive to implement.

Many smaller website owners will prefer to try to fly under the radar until the federal government provides better guidance. But more conservative businesses may find that retaining a reputable web designer to ensure full compliance with WCAG is the better way to go.

Ultimately, everyone agrees that making the internet more accessible to persons with disabilities is a worthy goal. Most Texas businesses would prefer to accomplish this goal by involving fewer lawyers.

Steve Roppolo is managing partner in the Fisher Phillips Houston office. He has extensive jury trial and arbitration experience litigating all types of employment claims in federal and state courts on behalf of employers.