A series of lawsuits over the past few years has made it clear that accessibility under Title III of the Americans with Disabilities Act (ADA) and the Unruh Civil Rights Act, an analogous California statute, includes website access for the visually impaired and others who use assistive technology (i.e., reader software) when accessing the Internet. 

Litigation, and threatened litigation, surrounding the issue is on the rise, exposing nearly all companies with web and mobile presence to a potential claim that they are failing to comply with federal and state anti-discrimination laws.  

The argument, in a nutshell, is that companies are violating Title III of the ADA and the Unruh Act’s prohibition on discrimination on the basis of disability because their websites or mobile applications lack certain functionalities (such as including a text equivalent for every non-text element on a website or mobile application and ensuring that all web functions can be accomplished by using a keyboard instead of a mouse) that would make them accessible to those with disabilities.  

Companies should take notice, because these cases are rapidly increasing and those to date have been costly, with settlements extending well into the multimillion-dollar range.  This is especially significant for companies with a California presence because the Unruh Act allows for the imposition of statutory damages of up to $4,000 per violation whereas the ADA only permits injunctive relief and attorneys’ fees.  These fees serve as extra incentive for California plaintiffs to pursue accessibility litigation and can quickly add up for an unwary company. 

Complicating the issue of compliance is the fact that the Department of Justice, the entity tasked with enforcing the ADA, has not yet issued compliance standards, although the DOJ is expected to issue proposed rules sometime next year.  Despite the absence of clear guidelines, the DOJ has recently been quite active in attempting to require companies to make their websites accessible to the disabled.   

Companies that wish to proactively address this issue can find guidance based on a recent consent decree entered into between the DOJ and a financial services entity.  In the absence of its own guidelines, the DOJ relied on a comprehensive set of accessibility standards developed by a private industry group called the Web Content Accessibility Guidelines 2.0 (WCAG) and specifically required the company to take steps to make its website and mobile applications compliant with WCAG 2.0 Level AA.  The WCAG Guidelines contain numerous detailed requirements, including requiring that elements of a webpage include start and end tags in order to ensure readability by screen reader technology; that captions be provided for all live audio content with synchronized media; and that text be resized up to 200 percent without assistive technology and without the loss of content or functionality.  These additional functions, and others, are considered best practice and help ensure that websites and mobile applications are accessible to disabled individuals.  

The DOJ consent decree also required the company to take specific steps to help ensure accessibility, including creation of a web accessibility coordinator position to ensure compliance with the decree and creation of a web accessibility committee to monitor and maintain conformance of the company’s website and mobile applications.  The company was also required to provide specific employees with web accessibility training and to ensure that contractors are familiar with the WCAG. 

The DOJ’s reliance on WCAG 2.0 Level AA in this consent decree suggests that the forthcoming DOJ standards will be similar.  In light of the DOJ’s recent enforcement efforts and the flurry of actual and threatened litigation, now is the time for companies to take a closer look at the accessibility of their websites and mobile applications. 

5 practical steps

A few practical steps that companies can take include:

  • Evaluating the company website and mobile applications against WCAG 2.0 to determine possible access problems
    • As a reminder, this may also include web content that is provided by third-parties (such as map applications)
  • Creating a web accessibility policy
    • This policy would set out standards that the company will follow when developing web and mobile application content guidelines
  • Providing web accessibility training to employees who develop programs, code or publish final content to the website or to apps
  • Scheduling periodic audits and web and mobile application content testing and
  • Ensuring that the website or mobile application includes a way for customers and users to provide feedback when encountering problems.   

Being proactive now can help prevent your company from becoming a target.