The Americans with Disabilities Act, or ADA, was intended to provide a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities. Title III of the law states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.” Can your firm’s website can be considered a “place of public accommodation”?

Consider this: does your website…

Have pages that only contain pictures, without associated or embedded text?

A visually impaired person would have difficulty if a web page contained only photos because the screen reading software can only read text, and not text on photos.

Link to PDF documents?

Aside from being a hinderance for search engine optimization-purposes, many PDFs are also inaccessible to someone using a screen reader. The image-based format would not be “read” by a text screen reader.

Have embedded videos that do not use subtitles or closed captioning?

An individual who was hearing impaired would not be able to hear the audio from the playback, and without subtitles would have no idea what is being said on the video.

Many people with disabilities use technologies that enable them to use computers and phone applications. People with visual impairments may use programs such as Job Access With Speech (JAWS) or Apple’s VoiceOver as screen reading software to access online content. Screen reading software ‘speaks’ text that appears on the computer display or is embedded on the webpage. But that only helps if the content on your site is optimized for consumption by people with disabilities.

How the law is evolving

When the ADA was first passed into law, its intent focused on a business’s physical location to ensure it was accessible to people with disabilities. The law focused on the incline of wheelchair ramps, narrow entrances, or a curb that was too high. It did not provide guidance for the accessibility of internet web pages or mobile applications. However, the law did not expressly limit its coverage to a business’ physical store or exclude a business’ “online” location.

The Department of Justice failed to adequately clarify the scope of the ADA as it relates to website accessibility compliance for private businesses in any regulations. However, a private group of technology and accessibility experts, The World Wide Web Consortium (“W3C”), through international collaboration, developed web standards and guidelines for website content accessibility. Their guidelines, such as the current Web Content Accessibility Guidelines(WCAG), are widely regarded as standards for the industry.

WCAG 2.1

WCAG 2.1 was released in June 2018 as an update to version 2.0, previously released in 2008. The guidelines cover a range of recommendations for making content on the internet more accessible to people with disabilities. Web accessibility relies on multiple factors working together, including:

  • the content displayed on the web page
  • the browser itself or media player
  • any assistive technology such as screen readers, scanning software, etc.
  • the user and his or her own knowledge and experience
  • developers, including designers, coders, and authors, especially when this group can represent a diverse and inclusive cross section of the population
  • the software that creates websites
  • and the evaluation tools and validators

Rise in Litigation

In 2017, there were 814 ADA accessibility lawsuits filed in federal court. By 2018 there were 2,258. As of June 30, 2019 there were 1,204, with 2,408 projected by year end. Web accessibility lawsuits have reached a rate of one every working hour. Given the absence of federal guidelines explaining how businesses need to modify their websites to comply with the ADA, it stands to reason the number of federal lawsuits will continue to climb.

Under the current law, a plaintiff is not entitled to monetary damages for ADA violations, but a plaintiff is entitled to injunctive relief and attorney’s fees and costs. This means a business may be required to pay a disabled person’s attorney fees even if the business immediately agrees to correct any problems. Many of the latest ADA website accessibility lawsuits have focused on larger businesses with “deep pockets” that may be able to pay smaller monetary settlements to quickly end the litigation.

Due to the increase in ADA website accessibility lawsuits and increasing negative media coverage about them, the U.S. House of Representatives passed legislation (the ADA Education and Reform Act) that would have amended the ADA to force prospective plaintiffs to first provide written notice to businesses of noncompliance to public accommodations prior to filing a lawsuit. A business would then have 60 days to acknowledge receipt of the complaint, plus an additional 120 days before legal action could be initiated. However, the bill died in the Senate and there is no current or pending legislation that may address the outstanding issues.

What does your firm need to do to comply?

While web accessibility is still governed by guidelines rather than laws, it makes sense to be proactive. Evaluate your current website for accessibility and create a plan to resolve any accessibility road blocks. Most companies have limited in-house expertise regarding accessibility issues. In these cases, it makes sense to partner with a resource who can help. Working with your partner, determine how significant the changes are that need to be made and what remediation approach is best suited for your firm’s needs.

For more information or to see how LISI can help with your ADA website compliance efforts, contact us today.