Does Your Website Violate The Americans With Disabilities Act?

February 1, 2018

By: Gregory S. Shatan

If you have a website, the answer is probably “Yes.”

The Americans with Disabilities Act requires all “places of public accommodation” to provide access to disabled individuals.  It is now largely accepted that websites can qualify as public accommodations.  If your company’s website allows users to engage in transactions or receive goods and services, it is almost certainly a “public accommodation” covered by the ADA.  Employee intranets and “careers” sites for potential employees are also likely covered by the ADA.  Government contractors may face additional requirements.

If your company’s website is covered by the ADA, it’s highly likely that it violates the ADA.  It’s a sad fact that “web accessibility” has not been given sufficient attention in most web development projects.  As a result, websites often fall woefully short of complying with the prevailing technical standards for accessibility, even if it would have been relatively easy to meet many of the standards.

Increasingly, companies are finding out about web accessibility the hard way – through demand letters, litigation and even class action lawsuits.  Numerous law firms in the plaintiffs’ bar have been filing lawsuits by the dozens, often targeting entire industry sectors.  This forces companies to deal with litigation, settlement and web accessibility compliance all at once, and on the plaintiff’s timeline.  This can create significant financial and business difficulties, since this is an unanticipated project and an unbudgeted expense.  In our experience, companies that have not yet taken steps to address web accessibility are particularly vulnerable to suit and to government enforcement actions as well.

If you find yourself on the wrong end of a web accessibility lawsuit or demand letter, you will need to act strategically.  While these matters almost always result in a settlement rather than a trial, the nature of the settlement can vary widely.  You will need skilled counsel to assist you in evaluating the case, controlling the cost of the settlement (both the settlement amount and the cost of remediation), making tactical decisions on how to comply with web accessibility concerns, and avoiding a significant negative impact on your company in terms of time, effort and expense.

Ideally, your company will take matters into its own hands and address web accessibility proactively – well before any litigation.  This allows you to be in charge of the project, not plaintiffs’ counsel.  Web site remediation (and ultimately, replacement with a site that is “accessible by design”) and attendant issues such as testing, training, and maintenance, can be appropriately budgeted, staffed and planned within the business and financial structures of the company.  Furthermore, in our experience, companies that have made efforts at web accessibility compliance are less vulnerable to demand letters and litigation, especially while easier targets abound.

What is Web Accessibility?

An accessible website or mobile app is one that can be navigated and used successfully by people with disabilities, including blind, low vision, deaf, hearing impaired, motor impaired and cognitively impaired individuals.

People who are blind typically use specialized “screen reader” software.  This means that web pages must include “alt text” to identify the contents of a picture or the meaning of a navigation button or visual link – the screen reader reads the alt-text.  The page must also be well-structured, using different levels of headers and text, so that the user can navigate from point-to-point using keyboard commands.  To accommodate deaf or hearing-impaired users, all audio-visual content must be captioned and all audio content must offer alternative text.  And this only scratches the surface of the technical concerns that must be addressed.

Adding to the confusion and ambiguity surrounding web accessibility is the fact that the existing ADA regulations were written for a “brick-and-mortar” world.  Fortunately, there is a widely-accepted technical standard for web accessibility, WCAG 2.0 (Web Content Accessibility Guidelines 2.0), which the Department of Justice, courts and settlements have used as the de facto standard, despite not having any clear legislative authority for doing so.

Taking Charge of Web Accessibility

Given this landscape, what should companies be doing?  Companies are increasingly dealing with web accessibility issues proactively, both to avoid litigation and because there are solid business reasons to do so, including reaching more customers and meeting corporate social responsibility standards.

Companies should develop a web accessibility strategy, including the following key features:

· Appoint or hire a web accessibility officer.  Someone needs to own the project.

· Conduct an audit:

· Identify all websites, mobile apps and intranets operated by or for the company.

· Determine which of these digital assets fall under the ADA or other accessibility regulations, in the U.S. and abroad.

· Prioritize the relevant sites and apps, based on traffic, litigation risk, life cycle and business criticality.

· Audit sites and apps for compliance with WCAG 2.0 Level AA, using automated and manual testing.

· Develop a remediation and/or replacement plan for each site or app, coupling remediation with other enhancements to increase ROI while avoiding delay.

· Remediate sites and apps in a prioritized fashion.

· Post-remediation, test for compliance.

· Train personnel to maintain compliance.

· Monitor and test sites and apps on an ongoing basis to maintain compliance.

· Ensure that new sites and apps or major enhancements are “accessible by design,” incorporating accessibility features from the start. Retrofitting accessibility is far more expensive than building it in.

· Work with counsel throughout to monitor and understand the changing regulatory, litigation and technical landscape, factoring changes into project planning and implementation to ensure compliance and reduce risk.

If you find yourself in litigation before starting web accessibility planning or implementation, most of the same steps apply, except that the timeline will be compressed, the concerns of resolving the litigation will color the decision-making process, and the process of pursuing or resolving litigation will be added to the project.

Web accessibility is a rapidly evolving area and companies must face and embrace its challenges.  The up-front investment in time, effort and money will result in reduced litigation and compliance risk, lower long-term costs, and increased business from disabled customers.

If you have questions or concerns about web accessibility, please contact Greg Shatan at 212-554-7810 or by email at gshatan@mosessinger.com, or the Moses & Singer attorney with whom you regularly work.

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