You installed wheelchair ramps in offices; your doorways are at least thirty-two inches wide; you have braille printed on signs; and you have taken all of the steps necessary to provide physical access to your business for disabled employees, clients, or visitors. You believe that your business is fully compliant with the Americans with Disabilities Act’s (ADA). But what about your website—is it accessible to individuals with disabilities?
Scores of businesses in various industries have been forced to answer this question in response to demand letters and lawsuits that allege their websites are in violation of the ADA. In fact, since 2015, at least 240 lawsuits were filed in federal courts across the country testing this very issue. Plaintiffs’ firms across the country are crawling the web for websites that they believe violate Title III of the ADA.
“PLACES” OF PUBLIC ACCOMMODATION
Title III of the ADA prohibits discrimination in places (i.e., physical locations) of public accommodation. The ADA specifically identifies 12 categories of “places of public accommodation,” all of which are physical (not virtual) locations, including: hotels, restaurants, grocery stores, shopping centers, banks, public transportation, parks, zoos, schools, day care centers, gyms, and more.
There are two primary theories used to support the position that Title III’s applies to websites: (1) the website itself is a place of public accommodation; or (2) the website is one of the goods, service, facilities, privileges, advantages, or accommodations of a place of public accommodation that must be accessible. Some courts have held that the ADA only applies to physical locations—not websites. Other courts have applied the ADA regulations to websites if there is a link between the website and a physical location. A few courts have even gone a step farther and have applied the ADA to websites with no physical presence whatsoever.
WHICH STANDARDS APPLY?
Many Human Resources Departments—risk averse by nature—may be asking the next relevant question: what rules and regulations apply to websites under the ADA? Unfortunately, there is no conclusive answer to this question. The Department of Justice (DOJ), which enforces Title III of the ADA, has taken the position that websites are subject to Title III’s general accessibility requirements. The DOJ began a rulemaking process to clarify the issues, but unfortunately, the DOJ has deferred the rulemaking process until 2018.
Although the DOJ has not yet promulgated any regulations or established any standards, it has endorsed the WCAG 2.0 guidelines in amicus briefs. The official WCAG 2.0 guidelines are organized under the following four principles for making content more accessible:
1. Perceivable – Information and user interface components must be presentable to users in ways they can perceive. Content can be created in different ways (for example a simpler layout) without losing information.
2. Operable – User interface components and navigation must be operable. In addition, make all functions of the website available from a keyboard and do not design content in a way that is known to cause seizures.
3. Understandable – Information and the operation of user interface must be understandable. To assist in making websites understandable, the website should operate in predictable ways.
4. Robust – Content must be robust enough such that it can be interpreted reliably by a wide variety of assistive technologies.
ADOPTING AN ACCESSIBILITY PARADIGM
As ADA website accessibility lawsuits gain more popularity, plaintiffs’ attorneys are testing the viability of ADA accessibility claims and employers need to take steps to protect themselves. Specifically, to avoid allowing websites to develop into dormant liabilities, businesses should plan to accomplish some level of accessibility for their websites within the next year. Various “accessibility” reviewing platforms, such as http://wave.webaim.org, are available for free on the Internet and may be a good place to start. A more effective approach to this issue involves engaging legal counsel and seasoned web developers to conduct a privileged accessibility audit.
Without question, ADA website accessibility lawsuits, which provide plaintiffs’ attorneys with a steady stream of statutory attorneys’ fees, will continue to rise in popularity. Taking steps now to avoid liability may be the difference in your bottom line for 2017. If you have been contacted by one of the plaintiffs’ firms trolling for these lawsuits, contact experienced counsel immediately to prepare a defense.