Website Accessibility for the Disabled
Is your organization’s website accessible to persons with disabilities? If not, you may be putting your organization at risk. In recent years, there has been a spike in lawsuits alleging organization websites are not compliant with Americans With Disabilities (ADA) guidelines. This post will examine the scope of the alleged violations of federal law and circumstances that may affect the risk assessment for your organization.
The Americans With Disabilities Act
The ADA was signed into law in 1990 and has generated a significant amount of litigation in the last 29 years. A new cycle of litigation related to this law involves website compliance. Title III of the ADA states, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”1
In the past, this provision was used to overcome physical barriers to organizations, like handicap ramps, automatic doors, and accessible restrooms. Now, despite the fact that websites are not listed in the statutory language, lawsuits are alleging that websites are places of public accommodation and barriers to access must be removed. According to these lawsuits, a barrier to access websites includes the failure of an organization to make their website compatible with screen-reading software for the visually impaired.
The Department of Justice (DOJ), which is responsible for enforcing the ADA, has taken the position that Title III is applicable to organizations with websites offering goods and services. The DOJ requires organizations to make their websites accessible by any means. The most accepted guidelines for website accessibility are the Web Content Accessibility Guidelines (WCAG) 2.0.
Risk Assessment for Your Organization
The best way to protect your organization is to make your website accessible to persons with disabilities. Website compliance, however, can be quite costly, which can particularly affect small businesses and nonprofits. So, what’s the risk assessment if your organization chooses not to make its website compatible with screen-reading software? Well, that depends on a variety of factors.
First, how large is your organization? At present, these lawsuits are mostly targeted at large organizations. The ADA does not allow plaintiffs to recover monetary damages, so most lawsuits demand remediation (website compliance) and attorneys’ fees. Many plaintiffs and plaintiff attorneys are targeting large corporations who are more likely to pay small settlements and move on.
Second, where does your organization do business? The Circuit Courts of Appeals are currently split on the definition of the term “public accommodation” under Title III of the ADA. The First, Second, and Seventh Circuit Courts of Appeals have held that a website is a place of public accommodation whether or not there is a connection to a physical location. At the same time, the Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have held that a place of public accommodation must be a physical location, and websites that provide goods and services may also be a place of public accommodation if there is a significant nexus to a physical location. This circuit split means that the issue is ripe for the Supreme Court to consider and give a final interpretation of the law. Organizations should be mindful of the prevailing law in their jurisdiction. Until the Supreme Court considers this matter, the law is whatever the Circuit Court of Appeals in your jurisdiction says it is.
Finally, does your organization have a consumer-facing website? If so, regardless of other considerations discussed above, assume your organization could be the target of an ADA website compliance lawsuit.
Some smaller organizations are choosing to forgo the website adjustments and instead monitor the situation until the Supreme Court, Congress, the DOJ, or some other federal agency gives guidance. Some larger organizations concerned about minimizing risk are making the necessary website changes now to ensure compliance with federal law. If you are concerned about your organization’s website accessibility, consult with legal counsel regarding the prevailing law of the jurisdiction where your organization does business.
1 42 U.S.C. §12182(a).
Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations