Website ADA Compliance – What Does it Mean for Businesses?

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The past two years have seen a surge of lawsuits against companies whose websites, plaintiffs claim, are not ADA compatible. A few concepts combine to make this a tricky issue that has yet to be resolved in a uniform way across all courts and jurisdictions where the lawsuits have been brought.

This important discussion may have legal ramifications and the following recommendations and perspectives and should be not be regarded as legal advice nor may the content be updated to reflect current legal decisions, legislation, or laws regarding website ADA compliance.

From Title III of the ADA: “[n]o 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.” 42 U.S.C. § 12182(a).

Website ADA compliance

One of the biggest issues at hand is that the Americans with Disabilities Act Title III does not mention websites specifically and the U.S. Department of Justice does not have guidelines for what makes a website ADA compatible. The ADA was passed in 1990 and the purpose of the law is to ensure that people with disabilities have the same rights and opportunities as people without disabilities. One interpretation of Title III of the ADA as it pertains to digital spaces is that websites are considered a place of public accommodation, therefore they are covered by the ADA. Another avenue of legal interpretation follows that the ADA was intended for physical spaces and its spirit was not intended to address websites.

With the introduction of General Data Protection Regulation (GDPR), passed by the European Union in 2016, we started to see more nation-state regulation of online spaces so it’s not unreasonable to assume that the US will see more regulations and accompanying penalties for business with a nexus in the United States, possibly event to the extent that GDPR covers EU citizens outside of the physical borders of the EU.

What do federal courts say – they’ll know what to do, right?

Civil matters sometimes rely on laws as well as legal precedent so that should take care of it, right? Apparently not here. To make matters even more difficult for website operators, in 2017 the Department of Justice placed its project to provide guidelines for what makes a website publicly accessible on its “inactive” list, effectively stepping back from providing a much-needed framework. At the time of this article, federal courts are effectively splintered on the issue:

  • Eleventh circuit court: A website falls under the ADA if it’s representative of a physical place of public accommodation
  • Third, Sixth, and Ninth circuit courts: “Public accommodation” is limited to physical accommodations
  • First and Seventh circuit courts: It doesn’t matter if you have a physical presence or not, the ADA extends to websites

To fill the void of universal guidelines, the Worldwide Web Consortium (W3C) came up with a list of guidelines called Web Content Accessibility Guidelines or WCAG. WCAG was first released in 1999 and is in its second official version, which has three tiers (A, AA, AAA) was recently superseded by WCAG 2.1. Complicating WCAG’s guidelines, they are not a government authority and aren’t technically enforceable by law but are being used in key arguments for lawsuits against companies. This creates another issue for websites because the question becomes, which version of the WCAG guidelines should companies follow? Which version will courts use to make their decisions? Is the recognition of WCAG guidelines as an industry standard grounds for litigation?

Adherence to WCAG 2.0 AA appears to be a strong contender for “ADA compliance” in today’s rapidly changing online world.

Web Content Accessibility Guidelines

Pizza Website Lawsuit

Recently, Domino’s Pizza has found itself at the center of one of these lawsuits. Dominos uses several layers of technology on its website to attract customers, including a pizza tracking tool that tells a customer the status of their online order. A federal court ruled in favor of the plaintiff and Dominos hopes to take the lawsuit to the Supreme Court, arguing that making some aspects of its website into word form would be prohibitively expensive and would leave other websites, especially those with technical features like their pizza tracker tool, more vulnerable to lawsuits.

For smaller websites (with or without a physical presence), the issue is that they could be held accountable to the same standards as a much larger organization without having the resources to redevelop or implement WCAG standards. Here are a few ways to help mitigate the risk of litigation related to website accessibility:

  • Test and update websites for compliance with WCAG 2.0 AA standard
    • This applies to forms, pages, linked files, and features
    • Considerations such as zoom/text resizing should be taken into account
  • Add a site-wide website accessibility policy
  • Adopt procedures to regularly test for WCAG 2.0 AA standards
  • Require vendors, for both on-site and off-site links, to comply with WCAG 2.0

The precedents set by the outcomes of these lawsuits, especially if the Domino’s case one goes to the Supreme Court, are defining what the obligations are to achieve ADA compliance as it pertains to websites and a physical business nexus.

While there is still much to be defined with ADA website compliance, we can help implement changes that make your St. Louis website design more accessible. Contact our team for more information!

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