Your website looks good, is functional and provides a great user experience. But, can a disabled person use it? Can a visually-impaired person understand what your photos and other non-text aspects of your website are and do? If not, you may need to make some changes or you may receive a letter from lawyers threatening Americans with Disability Act, or ADA, claims.
When most people think of the ADA, they think of wheelchair ramps and braille on signs to enhance access by impaired individuals. The law may also apply to your website. And, even if it does not apply under current law, the Department of Justice is looking to interpret the law so it applies to commercial websites in the near future.
Existing Basic ADA Law
To state a private claim under the ADA, a plaintiff must allege (1) that she is disabled within the meaning of the ADA, (2) that the defendant owns, leases, or operates a place of public accommodation, and (3) that the defendant discriminated against her by denying her a full and equal opportunity to enjoy the services the defendant provides.
The legal issue for websites is whether website operators are operating “a place of public accommodation.” The statute lists 12 different types of public accommodations including somewhat of a catchall that includes “other sales or rental establishment.” The list, created when the law was passed in 1988, conceivably covers most commercial establishments, but does not expressly include websites.
Courts have essentially taken three positions when approached with this issue. Some courts take the position that the ADA applies to all commercial sites because the law was meant to protect disabled individuals from having a more difficult time than able-bodied individuals from doing business. That is why the website Scribd was unable to get a case summarily dismissed and ended up settling.
The second approach holds that if website has a “nexus” or connection to a physical location (such as a store website), then the ADA applies. Facebook escaped liability in a 2011 California case on these grounds. Target and Home Depot did not.
The third approach simply holds that the ADA only applies to physical places.
What happens if you get a demand letter or are sued?
So right now, the law is somewhat murky on whether the ADA applies to your site and may depend on where you are sued. As explained below, that may change in the future. But, what do you do now?
The good news for potential defendants is that the only remedies available in private ADA suits are injunctions that force you to come into compliance and attorneys’ fees. If the Department of Justice gets involved, they can seek civil fines and penalties. Hence, you need to do the risk/benefit analysis as to whether it is worth challenging the claim or not. This report says the lawsuits are on the rise.
In the meantime, up your compliance game
Getting dragged through a lawsuit is never a pleasant experience, so you may want to come into compliance before you become a target. The Department of Justice, the agency in charge of enforcing the ADA, is working to interpret the ADA to include commercial websites. The DOJ has delayed its anticipated new rules until fiscal year 2018.
Every indication is that they are going to interpret the ADA to apply to commercial websites. They are already moving that way with regard to government websites (Title II as opposed to Title III of the ADA) and they are going to monitor that interpretation while they consider applying the same rules to private commercial sites.
So what is compliance?
There is not sure-fire checklist to ensure 100% compliance. The DOJ has hinted that websites should aim to conform to the Website Content Accessibility Guidelines (WCAG) 2.0, Levels A and AA. Most advocacy groups also encourage websites to satisfy those standards.
As these claims become more prevalent, the WCAG 2.0 or similar standards will become just as familiar as including SEO elements into new sites. These standards include the use of “alt-text” features which allows screen reader technology to convert text to audio for the visually impaired.
If you are a website developer, you should start building sites following these WCAG 2.0 standards. If you operate a commercial website, you may want to give your web developer a call.