Website accessibility seems to be a topic that companies choose to ignore until it is too late. Is your website compliant, and does it need to be?
Jamie LaPlante, a frequent lecturer across the country on the issue of website and app accessibility, outlines the legal background, statutory coverage, application of the ADA to websites and apps, standards for accessibility, recent law and the consequences of the failure to comply.
Public Accommodations Law – Background
There are two different laws at issue: the Americans with Disabilities Act (ADA) and Section 508 of the Rehabilitation Act. Within the ADA, there are three different sections to consider: Title I (employment law), Title II (state and local government entities), and Title III (private entities). Title I only concerns website and app accessibility issues as they relate to employees, not the public. Notably, the only official regulatory standards for website accessibility are under Section 508, which applies only to the federal government and its agencies. For most private companies, as well as state and local government, the water is pretty murky on coverage and what is required for compliance.
By way of background, the ADA was passed in 1991 and said nothing about the Internet, websites, or mobile applications (“apps”). When it was amended in 2010, website and app accessibility were ignored. The ADA broadly requires equal opportunity to individuals with disabilities to participate in and benefit from all aspects of American civic and economic life. This would seemingly include readers and adaptive software for web browsing. The Department of Justice was scheduled for many years to issue regulations regarding website accessibility and private businesses. In 2017, those efforts were officially taken off the regulatory agenda.
Is Your Website Covered?
To be a place of public accommodation, the business must (1) affect commerce and (2) be in one of twelve categories listed in the ADA. Those twelve categories are:
- Places of lodging,
- Establishments serving food or drink,
- Places of exhibition or entertainment,
- Places of public gathering,
- Sales or rental establishments,
- Service establishments,
- Stations used for specified public transportation,
- Places of public display or collection,
- Places of recreation,
- Places of education,
- Social service center establishments, and
- Places of exercise or recreation.
If the website, and the goods or services it provides, does not fit in one of the twelve categories, it is not covered. The website or app must be doing something more than just advertising. Yet actually web-based sales are not required. Generally, except in certain federal circuits, the website or app must be integral to what is done in the physical business locations, even if the business is not “selling” over the Internet. There are a few areas of the country where pure e-commerce—those without any physical locations—are covered as places of public accommodation.
How Does the ADA Apply to Websites and Apps?
With the rise in e-commerce, more commerce is done online versus in physical locations. Places of public accommodation are required to have disabled parking, accessible restrooms, etc. to
enable the disabled to have full access to the goods and services offered there. Plaintiffs and advocacy organizations sought to apply law for accessibility related to accommodating the disabled in their access to physical locations to virtual business locations on the Internet.
What is the Standard?
As applied to physical locations of public accommodations, there are voluminous regulations clearly addressing the height, slope, number, etc. of each element of the location. Unfortunately, there is no clear standard for websites and apps. Courts have zeroed in on the Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA as the consensus standard for now, but there is no regulation mandating this standard. The WCAG is a voluntary standard developed by W3C, an international consortium that develops website standards. Compliance with WCAG 2.0 AA enables a disabled user using assistive technologies to experience the website as close as possible to non-disabled users. As it is the only standard with any credibility out there, it is the best option for businesses to use for compliance with the ADA.
Businesses can be sued wherever they have customers, solicit business, or have physical locations. In the 3rd, 4th, 5th, 6th, 9th, and 11th circuits, courts require that the website have some connection to a physical location. In the 1st, 2nd, and 7th circuits (Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New York, Indiana, Illinois, and Wisconsin), purely e-commerce websites and apps can be sued.
While you might be waiting for clear regulations from the federal government, courts have held that the Department of Justice’s failure to issue regulations is not a valid reason to delay compliance efforts. Judgments have been rendered against businesses for their failure to comply—even in the absence of regulations.
Further, you may be surprised to learn that signing a settlement agreement with one plaintiff or preparing a plan to comply with WCAG 2.0 AA over a period of time does not prevent an adverse judgment for the continued failure to comply with website accessibility. The only clear way to avoid liability for website or app accessibility is to get into full compliance—likely with WCAG 2.0 Level AA. (Note that WCAG 2.1 was issued in 2018, although we have yet to see any courts order compliance with the updated standard.)
Ignoring Compliance Is Not a Good Strategy—the Risks
The risks of a failure to comply are significant. A business can face a court order to make the website(s) or app(s) accessible within a certain period of time, as well as state law damages, attorney’s fees, costs, and expert costs. It is better to assess your risk and address any compliance issues before you are sued or receive a demand letter.