Is Your Website Accessible to Disabled Individuals?

Under the Americans with Disabilities Act (“ADA”), private-sector websites may need to be accessible to visually-impaired individuals and other people with disabilities. This issue is heating up. Dozens of class action lawsuits have been filed throughout the country in recent years, and the U.S. Department of Justice (“DOJ”) is drafting new regulations that will require businesses to design websites in a way that ensures accessibility to disabled individuals.
Title III of the ADA, passed in 1990, requires places of “public accommodation” to be accessible to disabled individuals. This includes most businesses, schools, and municipalities. Drafted primarily with brick and mortar locations in mind, the ADA’s requirements to provide structural improvements such as wheelchair accessibility are now familiar. More recently, however, many courts have ruled that the ADA may require more than just access to physical locations; access to the Internet and other digital “places” may also be necessary. In 2010, for example, federal courts found that the ADA applied to bank ATM machines, and DOJ regulations now require ATM machines to comply with specific design requirements for those with vision, hearing and physical impairments, such as providing audio output and headphone jacks, braille keypads, and wheelchair accessibility.

Similarly, a number of cases in the federal courts have concluded that private-sector websites that offer goods and services to the public are “public accommodations,” and therefore must be accessible to users with disabilities. This is true whether the website is related to a brick-and-mortar location or not. For example, in a lawsuit filed by the National Association of the Deaf, Netflix’s “Watch Instantly” service was found to be a “public accommodation,” even though the business operates exclusively online. Other retail businesses such as Toys ‘R’ Us and Brooks Brothers, along with educational institutions like Harvard University and the Massachusetts Institute of Technology, have also been sued for alleged violations of the ADA. The DOJ, the agency charged with enforcement of the ADA, has intervened in many of these cases, and has clearly stated its position that although no regulations yet exist, websites are public accommodations and must comply with Title III of the ADA. In two cases in which the DOJ was involved, one involving H&R Block’s on-line tax preparation service, and the other involving the Peapod grocery delivery service, the litigation was resolved through settlement agreements. Although neither admitted to violations of Title III of the ADA, both H&R Block and Peapod agreed to implement changes to make their sites more accessible.

What does it mean for a website to be accessible? Although there are presently no regulations in place controlling private-sector websites, the settlement agreements as well as existing regulations that apply to federal agency websites provide some guidance. In 2008, the World Wide Web Consortium created a set of accessibility design standards known as the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”). These guidelines provide criteria and recommendations for making websites easier to read and navigate for disabled individuals. The criteria include ensuring that web content is compatible with screen readers (commonly used by the visually impaired), that the content has an adequate color contrast, and that the site may be navigated with a keyboard. The WCAG 2.0 guidelines are identified in both the H&R Block and Peapod settlement agreements as the standard to be applied in ensuring compliance with the ADA.

To help bring some certainty to the obligations of public accommodations to have ADA compliant websites, the DOJ is working on new regulations that will specify acceptable design requirements. The H&R Block and Peapod settlements make it clear that the DOJ will rely heavily on the WCAG 2.0 guidelines in drafting its own accessibility regulations for the private sector. The federal government has, in fact, used these guidelines in the past. In 1998, amendments to the Rehabilitation Act of 1973 created the “Section 508” standards that require all federal agencies to make their electronic and information technology, including websites, accessible to people with disabilities. The Section 508 standards were based upon the earlier WCAG 1.0 guidelines, and the federal government’s Access Board is currently in the process of updating the regulations to incorporate the newer WCAG 2.0 guidelines.

The DOJ had been expected to publish its proposed regulations for public comment in the spring of 2016, but it has now stated that this release will be delayed until 2018. While it is unknown when the regulations may go into effect, even now businesses that have websites could be targeted by lawsuits alleging that disabled individuals have been unable to access them.

Whatever the size of your business, it is important to begin the process of assessing your website’s accessibility and consider taking steps to incorporate the WCAG 2.0 accessibility design standards. Making web content, goods, and services more accessible to all individuals is not only likely to soon be the law, it is good for business.