Businesses that use websites (virtually everyone) are now receiving, with increasing frequency, demands related to compliance with the Americans with Disabilities Act (ADA).

These are unlike traditional employment cases implicating Title I of the ADA. Title I prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in:

  • Job application procedures
  • Hiring
  • Firing
  • Advancement compensation
  • Job training
  • Other terms, conditions, and privileges of employment

These new ADA Title III claims are an entirely different animal. Under Title III, issues arise related to information technology, intellectual property, data privacy and security, and whether the Internet is a “place of public accommodation.” Unfortunately, the answers to many of these questions are unsettled.

Title III of the ADA makes it unlawful to discriminate against the disabled in the full and equal enjoyment of the goods and services of places of public accommodation.  

Traditionally, the ADA was thought to apply only to brick-and-mortar stores.  Court decisions have clarified that this is not the case, and that the ADA could apply where there is a “nexus” between the use of the website and enjoyment of the goods and services offered at the retailer’s physical store. 

Proceeding on the premise that a website is subject to Title II of the ADA, how does a business make its website ADA compliant?

Since July of 2010, the US Department of Justice has been working on proposed regulations relating to the application of the ADA to private commercial websites.  These proposed regulations were to be published in the Spring of 2016.  This past November, the federal government released its Fall 2015 Semiannual Unified Agenda and Regulatory Plan. It identified regulatory priorities and significant regulatory actions expected in the coming year.

Unfortunately for those seeking guidance, the report also disclosed that the DOJ has further delayed its Title III website accessibility proposed rule. The initiative has been moved to the “long term action” list.  These proposed regulations are now expected in 2018.

Notwithstanding a lack of regulatory guidance, the DOJ and private parties have not been hesitant to bring enforcement actions and civil suits. Such claims have resulted in modifications to commercial websites that make such sites more accessible.  

By way of example, the blind can navigate the Internet using “screen reader” software that reads text on a webpage, converting it to a format that blind users can understand, such as audio or braille. Screen readers can also identify links and graphics to help with site navigation using only a keyboard. A screen reader requires the site to use code that is compatible with screen readers—code that most websites lack. 

While not having the force of regulation, many claims have been resolved through compliance with the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA).  These standards provide guidance for ensuring that websites comply with ADA accessibility standards, including use of screen readers, including (1) adding invisible “alt-text” to graphics for screen reader recognition; (2) ensuring all functions can be performed on a keyboard; (3) ensuring image maps are accessible; and (4) adding webpage headings for easier navigation.

In the course of determining whether your website is subject to Title III of the ADA, the following questions should be answered:

  • Is my website accessible and used by the public, or is accessibility limited in some way?
  • Do I offer goods or services through my site?
  • Do I use screen reader technology (and is this technically possible)?
  • How does ADA compliance affect my advertising and branding?
  • How does ADA compliance affect my intellectual property or my use of third party IP?
  • How does ADA compliance affect data privacy and security?

While there are no final regulations in place, thoughtful review of your website and planning for ADA compliance is critical.  It is not too early to get started now.