Recently, businesses across the country have become targets of innovative demands letters and lawsuits arising under the Americans with Disabilities Act (ADA). Disabled plaintiffs are working with law firms and advocacy organizations across the country, alleging that the businesses’ websites fail to provide access to people with certain disabilities. These demands and lawsuits are aggressively testing the limits of how the ADA applies to websites. Any businesses with a commercial website should take notice and prepare accordingly.
The ADA became law in 1990, and it aimed to prohibit discrimination against individuals with disabilities. Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation.” Initially, the term “places of public accommodation” was applied to stores, restaurants, movie theaters, schools, and other commercial businesses that were open to the general public. Neither Title III nor any other part of the ADA specifically discusses “website accessibility” for the disabled. However, as the Internet has risen in importance in our lives, many advocates, plaintiffs, and courts now argue that websites should qualify as “places of public accommodation.”
The recent demands and lawsuits essentially argue that websites must be designed to allow for “access” by people with certain disabilities who may have difficulty viewing, hearing, or interacting with some Internet content. People with disabilities who have the most significant concerns and tend to be the plaintiffs in the lawsuits include those with blindness, low vision, deafness, hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity, and epilepsy.
Due to this influx of litigation, courts have varied in their application of the ADA to company websites, but many have held that the ADA does cover websites. For example, in March of 2016, a California state court ordered a Colorado-based company to make its website accessible to persons with visual impairment based on a Title III ADA lawsuit. Further, the California court ordered the company to pay $4,000 in damages and over $100,000 in legal fees.1
It is also notable that the U.S. Department of Justice (DOJ) has issued guidance and proposed amendments to the ADA that would more clearly require websites to be ADA compliant. In addition to the risk of litigation, entities that are charged with Title III violations can face civil penalties from the government, which may reach a maximum of $75,000 for a first violation and $150,000 for repeated violations. Given the DOJ’s increased interest in website compliance, there is reason to believe that DOJ enforcement actions related to websites may increase in the coming years.
How can businesses avoid exposure to litigation and government enforcement? Fortunately, there are tools and systems for making websites and Internet content accessible to persons with disabilities. While the DOJ has not issued binding rules or regulations on ADA compliance for websites (those are expected sometime in 2018), the DOJ and plaintiffs have consistently suggested that websites can be made ADA compliant by following the Web Content Accessibility Guidelines (WCAG-2.0). The WCAG-2.0 defines how to make web content more accessible to a wide range of people with disabilities, including ones with visual, auditory, physical, speech, cognitive, language, learning and neurological disabilities. Some of the WCAG 2.0 Guidelines include offering users text alternatives (increasing font, braille, speech, symbols, or simpler language), prerecorded audio-only or video-only content, and color distinctions by separating the foreground from the background. A complete list of the WCAG-2.0 Guidelines can be found here. In addition to applying WCAG-2.0, we recommend that businesses review the terms of a settlement agreement between businesses and the DOJ related to website accessibility. These public settlement agreements give insight into how the DOJ interprets the ADA. Finally, we recommend that our clients review their websites for accessibility to disabled users, and engage a third-party vendor who can assist with website redesign to prevent potential violations.