The Americans with Disabilities Act (ADA) requires that “places of public accommodation” be accessible to the disabled. In practice, this tends to include physical accommodations like wheelchair accessibility or signage for handicapped parking. But, beginning in 2006, plaintiffs’ bar and the Department of Justice (DOJ) began alleging that websites are also covered under Title II of ADA, enacted in 1990. In the past year, over 240 lawsuits, primarily in retail, hospitality, and financial services have been brought forward alleging violations for failure to maintain websites that are accessible to the blind and visually impaired.1
These same allegations are now being brought against small healthcare providers, such as optometrists. Generally, the healthcare provider will receive a legal letter claiming that their website has failed an assessment for ADA compliance. They are then advised that they are required to self-report and must forfeit any federal funding until they come into compliance. Additionally, the lawyer demands a payment of $2,000.00 to stop the filing of a suit against the organization.
The law is not clear on whether websites are places of public accommodation under ADA, as courts have had differing interpretations. The Third, Ninth, and Eleventh Circuit have ruled that ADA applies to those websites that have a connection to goods and services available at a physical location like a store. The First, Second, and Seventh Circuit courts apply the ADA more broadly, to include all websites that offer goods and services even if not associated with a physical location. The Department of Justice believes that ADA does apply to businesses conducting transactions through websites, and will enforce ADA regulations.
There are no current laws or regulations defining what are required of websites. However, there are voluntary guidelines created by W3C, an international consortium. The most recent standards are Web Content Accessibility Guidelines (WCAG) 2.0. Within this guideline there are degrees of accessibility: A, AA and AAA. Of note, in 2010 the Department of Justice released a notice of proposed rulemaking seeking comments on this issue. That comment period ended in January 2011. The proposed rules have been delayed, as of now they have been pushed again to 2018.
Based on the current environment, we believe this is a good time for companies to evaluate their websites for their current state of accessibility, and determine what can be done to increase accessibility and bring their websites into compliance. Adhering to these voluntary guidelines can be seen as a positive and inclusive step by the organization, as well as having the potential to expand business into a previously-untapped sector.
The Web Accessibility Initiative — https://www.w3.org/WAI — has developed resources that can assist in determining how to make websites ADA-compliant. Listed below is a short list of basic items that should be considered:
- Develop plan to make existing web content accessible. Let users know what guidelines you have used to ensure accessibility.
- Ensure graphics have equivalent text, thus allowing an image to be read by a user.
- Documents should be posted in an accessible format. For instance PDFs and other image based formats are not accessible due to the document being un-readable. Documents should also be available in an alternative text based format (HTML or RTF).
- Websites should be designed so they can be viewed with color and font sizes set in the end user’s system.
- Include audio descriptions and captions so that videos are accessible to all. Include text that is synchronized to the video.
- Provide functionality from keyboard as well as mouse. Some individuals will not have the dexterity to use a mouse.
- Allow sufficient time to read and use content.
- Design site with sensitivity to viewers prone to seizures.
- Provide ways to help users navigate and find content.
- Help user correct and avoid mistakes.
- Be compatible with current and future user agents including assistive web technologies.
- Ensure that individuals working on your web content are competent in accessibility guidelines and how to implement them.
- Consider asking disability groups to access your website, to determine ease of use. Use feedback to make changes.
Morgan v Joint Administration Board retirement Plan of the Pillsbury Company and American Federation of Grain Millers AFL CIO CLC. United States Court of Appeals, 7th Circuit. No. 00-3859. Decided October 11, 2001
Department of Justice. 28 CFR Parts 35 and 36. CRT Docket No. 110; AG Order No. RIN 1190-AA61. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.
Employer Law Report. Jamie LaPlante. Published by Porter Wright. December 4, 2015.
ADA Best Practices Tool Kit for State and Local Governments. Chapter 5. Website Accessibility under Title II of the ADA.
Web Content Accessibility Guidelines (WCAG) Overview. Updated October 2, 2012. Shawn Lawton Henry. Editor. Developed with the Education and Outreach Working Group (EOWG) and the Web Content Accessibility Working Group (WCAG WG)
Why: The Case for Web Accessibility. Editors Shawn Lawton Henry and Liam McGee. Education and Outreach Working Group.
WebAIM Web Accessibilty In Mind. Center for Persons with Disabilities. Utah State University. Logan Utah. http://www.webaim.org.
126-10050 (4/17) LC 2017-053