By Richard M. Hymas and Madeline Aller
Title III of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability in places of public accommodation. The ADA expressly provides that places of public accommodation engage in unlawful discrimination if they fail to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” The ADA was signed into law to protect individuals with disabilities.
Blind or visually-impaired individuals can access the Internet using screen-reading software, which vocalizes the visual information on websites. An ADA-compliant website design does not require people to see, hear or use a standard mouse in order to access the information and services provided.
There is no specific regulatory guidance regarding the requirements that a company must satisfy in order for its websites and mobile applications to be ADA-compliant. But, any website built without specifically addressing ADA compliance will create unnecessary barriers for people with disabilities. The ADA’s application to places of public accommodation is not limited to brick-and-mortar locations and does not exclude online locations from its coverage. The language of Title III is broad enough to include websites and mobile applications. The Department of Justice (DOJ) and the courts have provided some guidance on the application of Title III to websites, but Congress has yet to act.
Title III fails to provide a clear or concrete path to compliance. Although the DOJ has not released regulations relating to website ADA compliance, it is clear that websites must be accessible to disabled persons. The DOJ generally supports the idea that a company can make its website accessible by any means, which includes, but is not limited to, compliance with Web Content Accessibility Guidelines (WCAG) 2.0, Level AA requirements. WCAG 2.0 guidelines are private-industry standards for website accessibility developed by technology and accessibility experts. The guidelines have been widely adopted to conform public-facing, electronic content, to WCAG 2.0 level AA Success Criteria. For example, the Department of Transportation requires airlines to adopt the WCAG 2.0 accessibility standards. The current version of WCAG 2.0 was finalized in 2009 and was adopted as the standard for international organizations in 2012. You can learn more about WCAG 2.0 Level AA at https://www.w3.org/TR/WCAG20/.
Google Maps and popular Iinternet browsers such as Google Chrome, Internet Explorer and Safari comply with WCAG 2.0 guidelines.
There has been an increase in litigation alleging companies have violated the ADA by not making their websites or mobile applications accessible to persons with disabilities. In the first case to be tried concerning website accessibility, the judge ruled that 1. The defendant’s website was a “place of public accommodation” under the ADA and 2. Based on the testimony of the plaintiff and his expert, the website was not sufficiently accessible.
At least two other courts have held that websites are subject to the ADA, regardless of whether the goods and services are offered in physical locations or online. Recently a court ruled that the ADA applied to Domino’s website and app “even though customers predominantly accessed the website and app away from Domino’s physical restaurants” because there is a link between Domino’s website and app and the goods and services provided at Domino’s physical locations.
The DOJ has not adopted WCAG 2.0 as a legal standard, but compliance with WCAG 2.0 is a way to focus on whether an individual with disabilities is able to access a website. WCAG 2.0 identifies four principles of accessible design. Websites must be perceivable, operable, understandable and robust. Web pages should be built so that reader software will work on them.
WCAG 2.0 provides three levels of conformance: A, AA and AAA. Generally, the DOJ and courts have relied on Level AA when evaluating website accessibility. Level AA requirements include, but are not limited to, providing text alternatives to non-text content, avoiding designing content in a way that is known to cause seizures, providing keyboard functionality and providing labels guidance and instructions on where user input is required.
In recent years there has been an upward trend in ADA website non-compliance lawsuits. Failure to maintain an accessible website can result in a lawsuit, if a blind or visually-impaired individual claims that he or she cannot access the website. This may cause the company to incur legal fees, settlement payments and the cost to re-build the website so that it falls within ADA-compliant standards. High risks and costs are associated with website non-compliance.
Companies, with the assistance of counsel, should determine if their websites, online tools and mobile applications are ADA-compliant and, if not, take appropriate action to bring them into compliance.
Richard M. Hymas is a shareholder at Durham Jones & Pinegar in Salt Lake City. His practice involves employment law matters and commercial litigation. Madeline Aller is an associate attorney at Durham Jones & Pinegar. Her practice focuses on commercial litigation.