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In Part I of this series, we discussed the uncertainty concerning whether the Americans with Disabilities Act (ADA) applies to websites of private businesses, and, if so, the specific requirements that would apply to websites. Additionally, we discussed that even if under no legal obligation to do so, businesses need to be aware of the current status of the law concerning web accessibility. Below, we address why businesses should consider the adoption of a formal web accessibility policy and present the top 10 most important considerations affecting the components of a web accessibility policy.
10. The Basics. A web accessibility policy is a formal policy adopted by a business or institution to formalize its commitment to making its web presence accessible to individuals with various disabilities, including individuals who are vision and hearing impaired. As discussed in Part I, the current best practices are reflected in the Web Content Accessibility Guidelines released by an international organization called the World Wide Web Consortium. These guidelines provide detailed standard with respect to the creation and maintenance of websites that are as accessible as possible to disabled individuals and should serve as the starting point when discussing the adoption of a web accessibility policy.
9. All New Websites Should be Compliant. Any web accessibility policy should separately address existing websites and future websites. With respect to future websites, businesses should commit to creating only content that complies with the guidelines. Doing so will avoid additional costs in the future and will demonstrate an immediate commitment to web accessibility. The opposite is also true. Creating new content that has accessibility barriers is inconsistent with the adoption a web accessibility policy and sends a mixed message about a business’s commitment to web accessibility. Moreover, to the extent the ADA applies to websites, creating additional content that does not comply with the guidelines potentially exposes business to greater liability.
8. Modifying Existing Websites. The more difficult aspect of a web accessibility policy concerns how to modify existing websites with accessibility barriers to ensure compliance with the guidelines. At first blush, this may seem to be a relatively straightforward and simple process that can be accomplished with a few “quick fixes.” But a quick review of the Web Content Accessibility Guidelines illustrates that for many businesses, web accessibility will be a long-term and expensive process. This is particularly true for businesses with a large web presence and businesses that do not have in-house staff capable of performing the required modifications.
7. Prioritize Important Content. Compliance is not an overnight process, and for this reason, businesses should prioritize important content to be first in line to be made compliant. This will make a business’s most critical websites quickly available to the broadest audience and will demonstrate a business’s commitment to web accessibility. There are a variety of methods of prioritizing certain content. Initially, a business might identify specific content that is integral to the use of a business’s website, such as the homepage or websites that provide directions of how to contact the business. An alternative method is the creation of objective criteria to guide when certain websites will be made complaint. For example, a business may prioritize websites that are in the top 10% in web traffic among all of its websites.
6. Specific Exclusions. A policy should specifically state what is covered, and just as importantly, what is not covered. This will be particularly significant with respect to providing a realistic estimate as to the cost and time needed to ensure compliance. There are several specific categories of content that a business may want to consider excluding from its web accessibility policy. For example, while this article mainly addresses web accessibility, there are similar concerns with respect to accessibility to mobile apps, electronic communications, and other technological platforms. Likewise, many businesses provide files for users to download, such as PDF documents and software. Increasingly, businesses are permitting users to create their own online content, such as a publicly-accessible profile or internal social network, hosted by the business’s website. In all of these circumstances, it may be impracticable or impossible for a business to ensure compliance that this content complies with the guidelines, and a business should consider whether to exclude such content from the policy.
5. General Exclusions. In addition to the specific exclusions discussed above, it is also advisable to include a “catchall” provision to provide your business with flexibility and to avoid making an absolute commitment to making all content accessible to individuals suffering from any disability. Importantly, even to the extent the ADA applies to websites, it does not require businesses to undertake unreasonable efforts or excessive costs to ensure compliance. A web accessibility policy should acknowledge that there may be certain websites or types of content for which it would be impracticable to adhere to the guidelines. It is advisable to include a provision in a web accessibility policy permitting exclusion on a case-by-case determination and to identify objective criteria that will be used in making that determination, including cost of compliance.
4. Third Party Contracting. Businesses are increasingly contracting with third-parties to provide information technology products and services, including the development and maintenance of websites. For this reason, web accessibility policies should include a provision requiring that IT contracts with third-parties contain a requirement that all products and service comply with the policy. It is advisable to expressly mention the web accessibility policy as a condition of performance, to attach the policy as an exhibit to the contract, and to provide a remedy for non-compliance.
3. Establish Deadlines But Be Realistic. A web accessibility policy, or an addendum to the policy, should include deadlines by which specific projects will be completed. For example, a policy might provide that as of a certain date, all future websites must be compliant with the guidelines and by a different date, all third-party IT contracts will contain web accessibility provisions. Such deadlines should not be so rigid so as to eliminate any flexibility to account for unanticipated developments. It is easy to believe that making websites accessible to individuals with disabilities can be accomplished in short order by performing a few straightforward tasks. While there may be some simple fixes that remove access barriers, optimal accessibility is an intensive and ongoing process. For these reasons, businesses should create specific, but reasonable, deadlines with respect to the completion of specific projects.
2. Follow Your Policy. It is important to not only create a web accessibility policy but to follow it. As addressed in Part I of this series, there has been a recent surge in litigation and threatened litigation involving claims that private businesses violate the ADA by maintaining websites with access barriers. Though the applicability of the ADA to websites remains uncertain, any business that adopts a web accessibility policy can expect any failure to comply with its own policy to be featured as evidence in an ADA lawsuit.
1. Don’t Reinvent the Wheel. Many businesses will not have sufficient in-house resources to perform all of the tasks likely to be required by the adoption of a web accessibility policy, particularly given that web accessibility is a very specialized and relatively new niche of web development. Consequently, even businesses with substantial in-house IT resources and experienced IT staff should not expect to be able to perform all web accessibility projects without turning to third-party resources or retaining additional staff. Fortunately, there are businesses that specialize in web accessibility that can both review existing websites for compliance and remediate any problematic websites to eliminate access barriers. We highly recommend that businesses, particularly those with unsophisticated information technology departments, consult and consider retaining one of these specialized consultants. It is advisable to retain third-party consultants through an attorney to establish an attorney-client or work product privilege with respect to communications with the consultant and work product generated by the consultant.