Americans with Disabilities Act: Is your Website Accessible?
In 1990 Congress passed the Americans with Disabilities Act (ADA).1 The ADA was the result of bipartisan action and signed into law by President George Bush. The purpose of the ADA is to provide equal opportunities and prohibit discrimination of individuals with disabilities in employment, transportation and access to public and private services, programs, goods and facilities.2 Specifically, under Title II and Title III, public agencies and private companies are required to provide equal access to goods, services, facilities, and programs – including but not limited to lodging, recreation, transportation, education, dining and services.3 In 2008 the ADA was amended to refine and expand the definition of what constitutes a covered “disability.”
Since its inception, the ADA has served to force changes by public entities and private businesses to make their services, goods, facilities and programs more accessible to employees and the public. It has also served to provide more opportunities for those who are disabled and provide protections to those that become disabled. The ADA has been criticized at times for being too stringent in the requirements that must be met regarding public accommodations, but also being too vague. Indeed, this has resulted in a category of lawsuits called “drive-by lawsuits,” in which stores, restaurants and businesses are sued for violations of the ADA, including violations such as a sign being in the wrong spot or height, incorrect door hardware, bathroom dispensers or mirrors being off by a few inches, or a ramp that is off by a few inches or degrees.4
Within the past five plus years, ADA public accommodation lawsuits have started alleging accessibility issues with regard to new technology and the internet. Specifically, lawsuits are alleging that public and private entities are violating the ADA by not having accessible websites. The initial reaction by many public and private entities, which often comes up in pleadings, is that there are no regulations stating what level of accessibility must be provided when using new technology and the internet.5 Despite this, the United States Department of Justice (“DOJ”) has taken the position that even though it has not issued regulations on the accessibility standard, the ADA should be interpreted to apply to new and developing technologies, including websites.6 In doing so, the DOJ has expressly recognized that further regulations regarding website related obligations and different technical standards for determining web accessibility are warranted and further guidance will be provided at some point in the future.7 However, in recognizing that guidance and standards are warranted and needed, the DOJ has taken the position that these types of lawsuits should not be stayed pending the DOJ issuing regulations – in part based on the uncertainty of when such regulation would be issued.
For example, it was highly anticipated that the DOJ was going to issue proposed regulations setting the accessibility standard for state and local government websites under Title II of the ADA in 2016. After taking public comments, instead of issuing the rule, the DOJ issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM), seeking further public input on over 100 positions that it was considering taking in the proposed regulations, including input on the costs and benefits of such a proposed rule. The SANPRM imposed an August 8, 2016, deadline for submission of public comments, which was subsequently extended to October 7, 2016. After the comment period closed, the DOJ stated in the federal government’s Unified Agenda that it anticipated issuing a proposed rule for state and local government websites in July 2017. 8 However, with the new administration’s January 30, 2017, Executive Order on Reducing Regulation and Controlling Regulatory Costs, there is increased doubts over whether the DOJ will issue a proposed rule on website accessibility standards for public entities under Title II.9 Although no regulations have been issued, all indications are that the standard the DOJ will propose for website accessibility is compliance with Version 2.0 AA of the Web Content Accessibility Guidelines (“WCAG 2.0 AA”) published by the World Wide Web Consortium (“W3C”). The reason for this is that the DOJ currently requires compliance with WCAG 2.0 AA in settlements and the U.S. Architectural and Transportation Barriers Compliance Board (“Access Board”) issued a final rule on January 18, 2017, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA, instead of what was previously recognized as Section 508 website accessibility standard.10 The Access Board’s final rule became effective March 20, 2017, and compliance will not be required until January 18, 2018.11
Compliance with WCAG 2.0 AA requires addressing issues that impact how a website is perceived, operable, understandable and robust. This includes providing text alternatives for non-text content such as pictures, providing captions of audio in videos, presenting content in a meaningful and consistent order across all pages of a website, ensuring contrast ratio between text and background meets a certain standard to make it more visible, images of text are not used (as that inhibits screen readers), and clear headings and labels must be used.
One of the issues that both public entities and private companies are dealing with is that many times their current websites are not set up to be compliant with WCAG 2.0 AA. Moreover, the cost to “fix” an existing website to be compliant with WCAG 2.0 AA can be more than the cost to design and implement a new website. Indeed, oftentimes public entities and private companies do not know that their website is not accessible, has accessibility issues or is not compliant with WCAG 2.0 AA, until a demand letter is received, they are audited by the DOJ or they are sued. Moreover, some website designers do not take accessibility issues into consideration when designing a website or in discussing website design with a client. Indeed, when faced with this issue or questioned about accessibility, some website designers state that there is no accessibility standard currently required by law, which while technically correct does not mean that the website does not have to be accessible.
As more industries and public entities are targeted by the DOJ and “drive-by” lawsuits for website accessibility compliance, the more it is recognized that websites must meet at least some sort of accessibility standard. Moreover, settling with one adverse party does not protect you from claims by another third-party for the same website accessibility issue. As a result, many public and private entities are moving to “fix” the problem by making their websites accessible, rather than fighting these lawsuits. This in turn, increases the expectations of website designers to include accessibility features from the start. While this is beneficial to disabled individuals, one of the frustrations for disability advocates and attorneys is that these lawsuits are being brought for the proper purposes. For example, the motives of plaintiff firms pursuing these types of claims have been questioned by disabled individuals and the entities that they are suing.12 Indeed, at least one of the law firms that holds itself out as specializing in pursuing ADA website accessibility claims had a defendant counter-sue it for failing to have a website compliant with WCAG 2.0 AA.13 Additionally, recently the Independent Bankers Association of Texas, Texas Bankers Association and North Carolina Bar Association have alleged violations of state law, including claims against them for unauthorized practice of law in a state they are not licensed in and for potentially violating ethics rules regarding soliciting new clients.14 Thus, while many public and private entities are not opposed to bringing their websites into compliance, they would like to see regulations that would provide a grace period for compliance, during which they would not face the threat of litigation. Until regulations are issued the only way for public and private entities to limit their exposure is to bring their websites into compliance with the currently recognized standard (WCAG 2.0 AA), with the understanding that it could always change…as technology often does.