Is Your Website Disability Friendly?
An estimated 814 website accessibility lawsuits were filed last year alone.
Much like everything else in our modern society, Americans with Disabilities Act (“ADA”) litigation has moved to the Internet. Last year saw a surge of website accessibility lawsuits in federal and state courts. Visual- and hearing-impaired plaintiffs filed an estimated 814 ADA Title III lawsuits alleging that business websites were not accessible to individuals with disabilities.
The ADA’s non-discrimination mandate requires that “public accommodations” provide qualified individuals with disabilities equal access to their programs, services or activities unless doing so would fundamentally alter the nature of their programs, services or activities, or would impose an undue burden.
This Likely Means You
Businesses that provide goods or services to the public almost always qualify as “public accommodations” under the ADA, regardless of their size. Examples include restaurants, hotels, theaters, retail stores, shopping malls, service establishments, property management companies, dry cleaners, pharmacies, doctors’ and dentists’ offices, museums, libraries, zoos, parks and bowling alleys.
While the ADA was traditionally intended to cover physical buildings, locations and spaces for these public accommodations, its general accessibility mandate now extends to websites. Where a website is heavily integrated with physical locations and operates as a gateway to them, the courts have typically found that the website is a service of a public accommodation covered by the ADA.
What is Equal Access?
For business owners and web designers there is a dearth of guidance or regulation on website accessibility. Businesses are navigating a body of laws enacted in 1990 when the Internet was not the omnipresent force it is today. In fact, the once-promised and much-anticipated guidance and regulation were recently withdrawn.
In 2010, the Department of Justice (DOJ), the federal agency responsible for administering and enforcing Title III of the ADA, started the rulemaking process for regulations applicable to websites of public accommodations. In January 2017, after years of waiting, the U.S. Architectural and Transportation Barriers Compliance Board (the Access Board) announced a final rule requiring that websites of federal agencies conform to the Web Content Accessibility Guidelines 2.0 Levels A and AA (WCAG 2.0 AA) within one year. Many considered it a foregone conclusion that the DOJ would similarly adopt WCAG 2.0 AA for public accommodations.
Despite promising regulation by mid-2018, in December 2017 the DOJ officially withdrew its intent to issue rules and guidelines. Keeping pace with the current administration’s de-regulation goals, the DOJ stated that it is “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.”
The DOJ’s abandonment of technical guidance for website access is an unfortunate development for the disability community and covered businesses alike. The lack of clear rules means the disability community faces no continuity or consistency in the websites it visits, nor can it expect a baseline set of services or content on those websites that have sought to be compliant.
Instead of having clear rules to follow, businesses are left with following an often inconsistent and ever-changing patchwork of decisions coming out of the courts. Meanwhile, as businesses try to determine what equal access to their websites means and how to provide it, the threat of and number of website accessibility lawsuits increases.
What Should You Do?
Until more direct guidance is given by the courts or DOJ, businesses and public accommodations should comply with WCAG 2.0 AA or ensure the web design professional it has retained is preparing a website that is compliant. However, ensuring that the website complies with WCAG 2.0 AA will not necessarily insulate the business from threat of litigation or liability.
One of the first trials in a website accessibility lawsuit took place in 2017 and did not go well for the business. In Florida, a federal court concluded that grocer Winn-Dixie was a public accommodation and violated the ADA by having an inaccessible website. The judge found Winn-Dixie violated the ADA by offering coupons, other prescriptions and store location options on its website, but failed to make sure the website was compatible with the screen reader software used by the visually impaired plaintiff. The judge ordered Winn-Dixie to make its website conform to the WCAG 2.0 AA, which the judge identified as the “industry standard” for website accessibility. It was also found that the $250,000 cost to remediate Winn-Dixie’s website was not an “undue burden.”
Accessibility is Just Good Business Sense
Aside from decreasing the risk of ADA litigation, having a WCAG 2.0 AA compliant website is just good business sense.
One day – during this administration or the next – the DOJ will likely issue ADA website accessibility compliance regulations. If you have an accessible website, you will already meet those standards and be ahead of the curve.
Your company’s website is a primary marketing and communications tool. Your clients and customer (past, present and future) are coming to you from all kinds of backgrounds and circumstances. Conservative estimates place the sight-impaired community at roughly 8 million people. Other studies suggest that aging baby boomers will double the current number of hearing- or visually impaired Americans over the next 15-30 years.
These figures do not count the significantly higher number of people who favor accessibility, i.e. interest group members, socially conscious persons, and friends and family members of those 8 million sight-impaired individuals. It makes good business sense to have an accessible website so that as many people as possible can use your services. Doing so also shows the larger public that you understand the needs of the disabled community and want to implement policies that best serve them.
It’s also worthy to note that many search engines expect accessibility to be a primary goal in website development. Google rewards WCAG2.0 AA-compliant sites with higher rankings. Having a more accessible website now may significantly benefit your search-engine optimization (SEO) and ranking potential without you having to devote marketing budget dollars to an SEO marketing campaign.
Ray Lewis is a partner in Deutsch Kerrigan LLP’s civil litigation department whose practice centers primarily in the areas of complex commercial and business litigation, insurance defense and appellate work. He has successfully litigated complex commercial disputes for local and national clients involving multi-million dollar claims for breach of contract, product liability and transportation casualty.