IS YOUR WEBSITE ADA COMPLIANT?
- Kathleen Finnerty
- Jan 29, 2020
- 6 min read
Updated: Feb 12, 2020
The recent tidal wave of ADA lawsuits relate to accessible websites. What you don't know could hurt you.
OVERVIEW OF THE ADA
The ADA was signed into law nearly 30 years ago to protect the civil rights of individuals with disabilities in employment, access to government services, and access to "places of public accommodation". Places of public accommodation are generally businesses that offer goods and services to the public. The ADA identifies 12 categories of such places. By way of example, grocery stores, hotels, restaurants, and shopping centers all qualify as places of public accommodation.
The Internet, as we know it today, did not exist in 1990 when the ADA was enacted. Now, countless private companies provide goods and services to the public through websites (e.g., consumer goods, education, entertainment, social networks, and healthcare information).
“A key issue in this debate is whether a website, or any other Internet-delivered service, can be regarded as a place of public accommodation.”
The Debate Begins: DOJ’s Advance Notice of Proposed Rule Making.
On the 20th anniversary of the signing of the ADA, the United States Department of Justice (DOJ ) issued a rule making notice (known as an ANPRM) announcing its intent to establish requirements for making the goods and services offered through the Internet accessible to individuals with disabilities.
The DOJ interpreted the definition of a "place of public accommodation" to include websites that offer goods and services to the public. In its ANPRM, the DOJ emphasized its interest in adopting the WCAG 2.0 website accessibility standards created by the World Wide Web Consortium (W3C), a nonprofit organization. The WCAG 2.0 standards contain twelve guidelines that address Web-based accessibility, such as media requirements based on different types of disability (e.g., blindness, low vision, deafness, deaf-blind, and physical impairment).
Although the DOJ accepted thousands of public comments, it did not issue new regulations regarding Web-based accessibility under the ADA. In the current political environment, it is unlikely that any regulations will be published.
The lack of compliance regulations have caused uncertainty in the industry, and division among the Courts. The DOJ maintains the position that although the rule making process is incomplete, Web-based services are places of public accommodation under the ADA.
WEBSITES AND ADA COMPLIANCE IN THE COURTS:
National Association of the Deaf v. Netflix. Courts have have reached different conclusions on whether a website, or any other Internet-delivered service, is a place of public accommodation under the ADA.
Some courts hold that the ADA only applies in physical spaces. Access Now, Inc. v. Southwest Airlines Co., 227 F. Supp.2d 1312 (S.D. Fla. 2002).
Other courts ruled that the ADA applies to the Internet where the website serves as a gateway to a brick-and-mortar store, such as a retail store’s online website. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp.2d 946 (N.D. Cal. 2006).
On June 19, 2012, the federal District Court of Massachusetts became the first federal court to hold that the ADA’s accessibility requirements apply to website-only businesses. Nat’l Ass’n of the Deaf v. Netflix, 2012 WL 2343666 (D. Mass. 2012).
The National Association of the Deaf filed its lawsuit claiming that Netflix violated the ADA by failing to offer closed captioning for all of the videos delivered through its “Watch Instantly” streaming website. Netflix argued in its defense that the ADA applied only to physical structures. The court rejected that argument.
The court found that limiting the ADA’s reach to only tangible places and physical structures would frustrate the purpose of the ADA. The court articulated that the ADA was intended to evolve with technology and referenced the DOJ's rulemaking efforts.
Thus, the court found that Netflix’s website was a place of public accommodation. This court’s ruling means that all users with disabilities must have access to the information and services provided by Netflix’s website, not just those that have hearing limitations. Thus, the Netflix decision potentially impacts virtually any company that offers services or goods to the public through the Internet.
Agency Guidance
Since 2003, the DOJ has issued, and then abandoned, several phases of agency guidance that attempted to articulate a uniform position regarding ADA website accessibility. While the DOJ’s guidance has been a bit uneven and stunted, it has consistently stated that websites must be accessible to disabled persons.
On September 25, 2018, Assistant Attorney General Stephen E. Boyd, sent a responsive letter to a bi-partisan group of 103 members of the U.S. House of Representatives who has requested clarity on “unresolved questions about the applicability of the ADA to websites” which have “created a liability hazard that directly affects businesses in our states….”
The DOJ responded that it first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago and that it has consistently taken the position that the absence of a specific regulation is not a basis for noncompliance with a statute’s requirements. It continued:
Absent the adopting of specific technical requirements for websites through rule-making, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA….
Therefore, the DOJ’s current position is that Title III applies to all publicly-accessible websites used by companies that otherwise qualify as places of public accommodation, and companies can make their website accessible by any means, which may include, but is not limited to, complying with WCAG 2.0, Level AA requirements.
Until Congress acts to clarify the ADA, courts and regulators will likely continue to cite the WCAG as the “gold standard” for ADA compliance.
WCAG 2.0 Compliance
WCAG 2.0 outlines four principles for website accessible design. In short, websites must be:
Perceivable, which means users must be able to perceive the information being presented;
Operable, which means that users must be able to operate the interface;
Understandable, which means that users must be able to understand the information as well as the operation of the user interface; and
Robust, which means that users must be able to access the content as technologies advance.
Websites must also be completely in conformance, and cannot achieve conformance if part of a website is excluded. Further, all the information presented by, and the functionality of, web content technologies (such as HTML, CSS, and JavaScript) must be supported by accessibility web content technologies.
The DOJ’s letter suggests that it does not view compliance with every aspect of WCAG 2.0, Level AA as required under the ADA. Instead, “public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.”
The Latest and Greatest WCAG
In June 2018, the W3C released WCAG 2.1, which caused further confusion for businesses trying to decide what standard to follow. However, the DOJ’s September 25, 2018 statement confirmed that the important decision for businesses is not whether to comply with a certain set of guidelines, but whether a disabled person can access the company’s goods, services, and benefits through its website.
BEING PROACTIVE CAN HELP
In closing, while most of the ADA litigation has been filed against larger companies, the trickle down effect is likely. Clarifying regulations are not likely to be implemented any time soon, and the ambiguity in the laws will not stop the flood of ADA website accessibility lawsuits.
Therefore, businesses should take proactive steps toward making their websites accessible, or at least adopt an alternative means for persons with disabilities to access the goods and services otherwise available on line (e.g. 24/7 help lines).
Employers should also be mindful of the fact that their online job applications should be accessible to all job applicants, including those with disabilities, or they risk liability under Title I of the ADA, which prohibits discrimination in hiring decisions, and which carries with it additional remedies such as compensatory damages (to pay a plaintiff for out-of-pocket expenses caused by the discrimination and compensate him/her for any emotional harm suffered), and punitive damages.
If you have questions, or would like our assistance in defending you or assessing your risks, please contact us at KFinn@KFinnertyLaw.com or call us at (916) 899-5072. Or check out our social media pages. You can also stay up to date by subscribing to our newsletter here.
NOTE: Many states – including Alabama, Arizona, Arkansas, California, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming – have also passed legislation or published guidance governing website compliance. Of those states, many have chosen to adopt WCAG standards. This article focuses on federal standards only.
Comments