Many of us are familiar with the Americans with Disabilities Act, otherwise known as the ADA. It is a landmark civil rights legislation that was signed into law by President George H.W. Bush in 1990. It works to guarantee that individuals with disabilities have equal opportunities to participate in mainstream American life, from finding employment opportunities to shopping at the mall or entering a public library. But “mainstream” life has changed a lot over the past 30 years, especially with the tremendous growth we have seen with the advent of the internet. More and more companies with or without brick and mortar stores have some type of online presence. As such, the past few years there has been a tremendous amount of litigation surrounding how the ADA should be applied to websites.
Current Status of the ADA
When the ADA was first enacted, Congress could not have anticipated just how far the internet would reach into everyday life. As a result, the ADA focuses on accessibility and discrimination issues that would happen in person—for example, standards for accessibility for brick-and-mortar business locations and employment setting. The ADA does not specifically provide guidance regarding the accessibility standards applicable to internet or online businesses nor does it expressly exclude online businesses either.
Title III of the ADA requires that every owner, lessor, or operator of a “place of public accommodation” provide equal access to users who meet ADA standards for disability. Over more recent years, the argument arose that this concept applied to websites, prompting a wave of litigation by plaintiff’s claiming that accessibility barriers experienced on a website violated the ADA because it denied them full access to and equal enjoyment of the goods, services, and accommodations of the website. But with no formal guidelines or laws in place outlining what online ADA compliance actually means for online businesses (with or without a connection to a brick-and-mortar business), it has been largely left up to the courts to decide what compliance looks like.
As we reported at the end of last year, the United States Supreme Court denied a petition filed by the pizza conglomerate Domino’s, sending a relatively clear statement that Title III of the ADA does in fact apply to websites. But the Supreme Court’s denial of cert still leaves businesses hoping for actual guidelines in limbo, waiting for either another case to reach the Supreme Court or the Department of Justice to issue guidance in this area.
Recommended Steps for Addressing Website Accessibility
In the meantime, Octillo has proactively monitored this area of the law over the past few years and recommends clients take intentional and protective measures to address website accessibility sooner rather than later. As either part of litigation defense strategy or proactive website remediation measures, we generally recommend implementing a comprehensive, phased approach to website accessibility, including the following measures:
Working with Octillo or a trusted third-party vendor that we together vet and retain to perform an independent website-accessibility audit for conformance with the Web Content Accessibility Guidelines (WCAG 2.1), the prevailing set of guidelines that set forth website accessibility standards.
Implementing a forward-facing website accessibility notice that is prominently and directly linked from the website home page that provides individuals with disabilities who are experiencing technical difficulties the ability to request assistance. Those staffing the phone line and receiving e-mails regarding this should be knowledgeable about the statement and be trained on how to help users that are experiencing technical difficulties navigating the website.
Deploying an internal website accessibility policy that guides the organization’s decision making and processes and procedures for designing, developing, and procuring accessible content on the website. Most websites are regularly updated and modified and accordingly there should be procedures in place as part of this internal policy for regularly reviewing the website for new accessibility barriers.
We also recommend regularly testing your website with assistive technology used by the disability community to access your content such as the JAWS screen reader. This process can provide valuable intel on potential and unforeseen barriers that may occur to users.
*Attorney Advertising. Prior results do not guarantee future outcomes.