When a typical business evaluates whether its facilities are in compliance with the Americans with Disabilities Act of 1990 (ADA), it usually considers whether it has provided appropriate physical accommodations, such as wheelchair ramps or bathroom handrails.
Most businesses, however, have not yet considered appropriate accommodations for the use of their corporate websites, including the use of speech recognition software, closed captioning and other assistive technologies.
The United States Department of Justice (DOJ) and numerous courts have determined that the ADA requires businesses to make their websites accessible to disabled persons. This development has spurred significant litigation and, in some instances, resulted in substantial settlements.
Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation.” Historically, the DOJ’s enforcement of Title III focused on brick and mortar locations. At the time the ADA was enacted there was little need to consider whether websites were in compliance with Title III.
Nonetheless, without issuing a formal rule, the DOJ has taken the position that Title III requires businesses to make their websites accessible to disabled persons. Perhaps because the DOJ has not provided any formal guidance on the issue, the courts have offered inconsistent interpretations of how to apply Title III to websites.
The Risk of Litigation
A new cottage industry of law firms frequently send demand letters to businesses on behalf of disabled Internet users. The letters allege that the businesses’ websites are not accessible to disabled individuals. The letters often include lengthy settlement agreements demanding changes to the business’s website and payment of attorneys’ fees and costs. Most at risk are businesses that conduct significant commerce online.
Given the increased incidence of litigation, businesses should carefully evaluate their websites. Although there remains a lack of formal guidance as to how to best address website accessibility issues, settlements approved by the DOJ in civil litigation provide some direction.
Using DOJ-approved settlement agreements as a guide, companies conducting significant business online should, at a minimum, take the following steps to ensure their websites are accessible to the disabled population:
- Create a website accessibility policy.
- Designate a compliance officer to conduct web accessibility testing and assist disabled individuals with issues.
- Solicit feedback from disabled users.
Companies should review their websites with legal and IT advisors to determine how accessible they currently are to disabled persons. Businesses with the resources to address website accessibility issues should do so promptly.
Being proactive with regard to website accessibility will not only help avoid litigation, but may expand the market for the business’s products and services to new groups of disabled customers.