Is Your Website ADA Compliant?
As evidenced by recent court decisions and regulatory actions there is a trending interpretation of the Americans with Disabilities Act (ADA) that a website is a “place of public accommodation.” Under this interpretation, businesses may not discriminate against disabled people by denying them access to the full and equal enjoyment of the goods and services provided by websites. In other words, just like brick and mortar buildings that must be accessible, websites must also be accessible to those with visual, auditory, motor, and cognitive disabilities. Unfortunately, the Department of Justice has not yet issued any regulations specifying the standards for website accessibility, leaving many questions unanswered.
Consequently, a growing number of businesses are receiving threats of litigation because their websites fail to provide equal access to the disabled. The threat letters typically claim that the law firm has performed an audit of the website in question, and profess that the examined site is flawed. Onerous settlement terms are usually offered. Since the plaintiffs firm does not claim to represent a class, the settlement agreement does little to eliminate exposure to future claims. The only way to reduce the likelihood of being targeted by one of these threats is to take steps to improve website accessibility.
Unfortunately, there is not much certainty about the extent of website accessibility that must be provided under the ADA. Some have speculated that the Department of Justice will adopt the World Wide Web Consortium’s (WC3) Web Content Accessibility Guidelines (WCAG) 2.0, Level AA in 2018, but confidence of that has dwindled in light of the current administration’s hostility towards new regulations. The result may be continuing ambiguity over the applicable standards for website accessibility. This may be a boon to plaintiffs firms, who obviously have no intention of waiting for clarification about the applicable standards. To reduce exposure, it would be prudent for businesses to take steps to improve the accessibility of their websites now.
Appropriate steps might include retaining a website accessibility consultant, performing website accessibility audits, implementing a website accessibility plan, and modifying websites to conform to WCAG 2.0 Level AA standards. Ultimately, every approach must be individually tailored, as the solutions can vary in cost, time to implement, and impact on website accessibility. This analysis will vary from business to business, depending on the size of the business, goods and services offered, and the website’s role in the business. And, while there is no guarantee that one approach can eliminate exposure to website accessibility claims entirely, adopting a plan evidences a credible, good faith effort to improve website accessibility, which would be meaningful in court, and reduce a business’s exposure to claims under the ADA.