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Time to Make Your Websites and Apps Accessible to the Disabled

July 1, 2021
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The Americans With Disabilities Act (ADA) requires, among other things, that places of “public accommodation” be reasonably accessible to the disabled.  For “physical” locations, this can mean things like braille menus, wheelchair ramps, or wider doors.  But when the ADA was passed in 1990, nobody was considering whether websites were “public accommodations” and whether they had to be “accessible” to the disabled.  A series of federal and state court rulings suggest that those who operate websites — particularly those which sell goods or services to the public, and more particularly those that are associated with a “brick and mortar” location — must ensure that disabled persons (such as the visually impaired) can access and use the website without substantial impediment.  This may require companies to examine their websites and establish practices and procedures to ensure that every update continues to be ADA compliant.  It may also require that companies that outsource website development, payment processing, or SEO, contractually ensure that third parties whose work impacts the functionality of the website also ensure that what they do is compliant with the ADA.

 

Testing, 1, 2, 3: How testers determine accessibility

Many cases of ADA non-compliance involve what are called “testers.”  Individuals, either working alone, with non-profit disability rights organizations, consumer protection organizations, or just acting as agents of law firms, go out and “test” to see whether a store, restaurant, movie theater or other public accommodation meets the requirements of the ADA.  They can count the number of handicap accessible parking spaces and measure their dimensions.  They can check for ramps, elevators, or other methods of making the location accessible.  And, if they find a violation, they can sue in federal court under the ADA.  Now, the ADA does not, by its terms, permit a lawsuit for money damages.  But it allows for the Court to issue an injunction requiring compliance and monitoring, and — and this is significant — it permits the plaintiff to collect their attorney’s fees.  In the area of “monitoring,” a plaintiff (or plaintiff’s law firm, or a non-profit organization) may propose that they will perform ongoing monitoring of the defendants’ compliance with the ADA — for a price.  In addition, various states’ civil rights or consumer rights laws provide for statutory damages for violation of either the ADA or its state law equivalent.  Thus, to a defendant accused of an ADA violation, they have the choice to fight, or litigate.  If they litigate and lose, not only will they have to pay their own lawyers, but likely have to pay opposing counsel as well.

 

Websites Aren’t Places

The ADA was intended to ensure that “accommodations” were accessible.  There is currently a split in federal circuit courts over the extent to which websites (and mobile apps) are places of public accommodation, with the Ninth Circuit in California holding that stand-alone websites (those not connected with a brick-and-mortar store) like that of Dominos Pizza are NOT public accommodations,  and the Eleventh Circuit finding the same for the website of Winn-Dixie grocery stores.    while other Courts have found websites to be public accommodations even if wholly divorced from a brick and mortar store.  Even in the case of Dominos pizza, the fact that the brick and mortar stores are operated by franchisees was a sufficient nexus to require the corporate parents’ website to be ADA compliant. In fact, on June 27, 2021  the trial court, on remand from the federal appellate court, found that Domino’s pizza had violated both the ADA and its California equivalent.

Another thing that distinguishes “physical” from “virtual” locations is the ease of conducting testing.  If you wanted to test 1,000 grocery stores for ADA compliance, you would have to have 1,000 disabled people go to these locations and make a good faith attempt to take advantage of the services and be unable to do so.  This takes time, money, and energy.

Not so much with website.  There are a wide variety of automated tools that can be used to scan millions of websites for compliance with standards for accessibility and identify barriers to impediments to such accessibility.  Once the robot finds a barrier, the disabled person can then attempt to access the site — knowing that the barrier exists.  Typically then, a lawyer representing the disabled individual will send out a letter to the company that operates the website, demanding compliance, and a civil complaint will follow shortly — typically filed in a jurisdiction that is friendly to the plaintiff.  The complaint will be identical to hundreds (or thousands) of complaints filed by the same lawyer using the same plaintiff.  Indeed, these testing plaintiffs will have a wide variety of apparent interests — complaining in court that they were denied access to vegan foods and steak products, to missile defense systems.  They can target multi-billion-dollar companies, and mom-and-pop stores with a website.  The robot doesn’t care — it scans and sues.

 

What Does ADA Compliance Mean on A Website or an App?

There are not standards for “compliance” under the ADA for a website or an app.  Indeed, noting in either the statue or the regulations mention websites at all, and the Department of Justice which enforces the ADA has never promulgated regulations (and has suspended the imposition of regulations) regarding the standard for making sure that websites are accessible.

However, there is a voluntary industry standard called WCAG currently in version 2.1 which is widely regarded as (and used by the Courts to determine) the standard for ADA compliance. These standards apply to everything from color, contrast, readability, fonts, typefaces, and the ability of automated webpage readers to understand and navigate a website.  Not all WCAG deficiencies will be ADA violations, but they may trigger litigation.

In addition, the ADA requires only “reasonable” accommodations, and that the website or app needs to be accessible — not perfect.  There must not be unreasonable barriers to the use or enjoyment of the public accommodation.

One huge difference between physical locations and websites and apps is that websites and apps are dynamic and often complicated and interconnected.  In the Dominos pizza case, the Court found that, during the pendency of the litigation, Dominos made more than 7,600 changes to its webpage and 5,200 changes to the Web App.  In theory, every one of these changes, every addition, subtraction, modification, etc., must be vetted to ensure that it does not impose a barrier.  I can envision a situation where a website operator — particularly a small one — can argue that, while they are committed to accessibility, the burden imposed by applying the ADA and WCAG 2.1 to every website modification is unreasonable.  For example, both Harvard University and MIT were sued when they put their lectures online because the lectures were not transcribed and close-captioned.  Features in video and audio conferencing utilities that automatically (and imperfectly) transcribe video and audio can help to make these media more accessible.

How to Make Sure That Your Website Is ADA Compliant

If you have a publicly facing website or app, you should do the following:

  • Perform an external WCAG 2.1 test and generate a report on its accessibility to the public.
  • Consider working with a disability rights organization in your area to have their members also navigate your app or site, and solicit recommendations for improvement with respect to accessibility
  • Perform an internal WCAG 2.1 test to see whether you are complying with WCAG 2.1
  • Establish a process and procedure for testing and evaluating modifications to the website and apps do not adversely impact the accessibility under the ADA
  • Ensure that website and app accessibility and WCAG “compliance” are requirements under any web development or implementation contract
  • Ensure that all third-party contracts which relate to the functionality of the website or web apps include a duty of accessibility and ADA compliance, as well as a duty to indemnify and hold you harmless for damages that may result if that duty is breached
  • Document what you have done to ensure ADA compliance, and any decisions you have made.  If you have decided NOT to implement a recommendation, document why you have done this (including impact of the change, cost, etc.)
  • Educate and train your development staff (internal and external) on the requirements of the ADA and WCAG, and make sure that they are both knowledgeable and sensitive to these requirements.
  • Perform periodic tests to ensure continued compliance and accessibility.  At least once a year, and on every substantial change.
  • Reach out to cloud providers and other business partners and see what they are doing to ensure that you are compliant.
  • Reach out to other third-party business partners regarding their compliance.  For example, if you are a restaurant and rely on services like OpenTable, etc., for reservations, their lack of accessibility may — I stress may — be attributable back to you for ADA purposes.
  • Don’t ignore things like demand letters or worse, civil lawsuits.  They really don’t get better with time.  They need to be responded to quickly to keep your costs (and liabilities) to a minimum.
  • Work with trade organizations to determine what others within your industry are doing with respect to ADA and WCAG compliance.
  • Keep on top of changes in both the law and technology in this area.

The Time to Make Your Websites and Apps Accessible to the Disabled Is Now

While ADA compliance — particularly for websites and apps — may not be your first priority, they may actually open up new opportunities and new customers for you, can help establish your company and its products and services as forward thinking and community minded, and can also help you avoid unnecessary litigation in this emerging area.

If you’d like more information on ADA compliance for your website, you can contact Mark Rasch at mdr@kjk.com.

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