Recently, a number of businesses across the country have become targets of demand letters and lawsuits arising under the Americans with Disabilities Act (ADA). Many of these claims have focused on financial institutions. Plaintiffs' firms are working with website testers and advocacy organizations across the country, alleging that websites fail to provide access to people with certain disabilities. These demands and lawsuits aggressively test the limits of how the ADA applies to websites and other online content. Some of these firms even seek to "work constructively" with the banks for a fee. We urge you to review your website and prepare for these challenges accordingly as outlined in this alert and in our recent Emerging Trends article.
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 physical locations (such as stores, restaurants 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 now argue that websites should qualify as "places of public accommodation." The recent demand letters 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. Plaintiffs in these lawsuits typically include those with blindness, low vision, deafness, hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity, or epilepsy.
While the Department of Justice (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 will be considered ADA compliant if they follow the Web Content Accessibility Guidelines (WCAG-2.0) Level AA. We recommend that you review the terms of public settlement agreements between businesses and the DOJ related to website accessibility. These documents provide further insight into how the DOJ interprets the ADA which will be crucial to your evaluation of your website's compliance.
We recommend that you also review your website for accessibility to disabled users and analyze whether your website's accessibility could be improved for people with disabilities such as those described above. There are third-party vendors who can assist with these efforts. Many businesses have already begun the process of improving the accessibility of their website either internally or through the use of a reputable website developer. We recommend continuous documentation of any such efforts.