10.15.19

I adore online shopping. As a consumer, the convenience of buying gifts, clothes, and everyday essentials at 11 p.m. from my couch is priceless. However, being an online vendor is another, more complex matter. One of the many challenges for companies conducting business online is evaluating website accessibility under the Americans with Disabilities Act.

ADA basics

The ADA prohibits discrimination by employers and other covered groups on the basis of disability. Title III of the ADA specifically prohibits disability-based discrimination in places of public accommodation. What’s a place of public accommodation?  If you’re a retailer, you probably are. Businesses with physical locations generally qualify as places of public accommodation under Title III if they are open to the public and sell goods or services.

In 1990, the internet as we know it today was still a twinkle in Al Gore’s eye, and disability discrimination in places of public accommodation occurred mostly in person. It is unsurprising, then, that the ADA contemplated physical barriers such as parking spaces, ramps, and doors.  However, because so many customers now interact with your business online before setting foot in your store (assuming they ever do), websites and other mobile applications have become the newest frontier for litigation concerning public accommodation.

A litigation free-for-all

Many of internet accessibility lawsuits allege issues for users with visual impairments or that websites aren’t coded for the use of assistive technology. Unfortunately, although many suits have been filed, the courts’ guidance is conflicting, even about fundamental issues such as whether and to what extent Title III even applies to websites.

Some federal courts — including the U.S. Courts of Appeal for the First, Second, and Seventh Circuits, have found that a website can be a place of public accommodation. The U.S. Department of Justice, which is the federal agency tasked with enforcing Title III of the ADA, agrees.

Other courts, including the U.S. Courts of Appeal for the Third, Sixth, Ninth, and Eleventh Circuits, have found that websites fall within the ADA’s protections if the website is sufficiently connected to a brick-and-mortar store.

Moreover, the volume of litigation varies from state to state. Some states don’t appear to have faced the issue at all. On the other hand, Florida and New York get a lot of Title III web-accessibility lawsuits, and California is following.

No guidance from the DOJ

The Department of Justice has not issued any specific guidance to private companies on web accessibility. As of 2018, the DOJ withdrew proposed regulations on this subject and told Congress that it was evaluating whether specific web accessibility standards were necessary and appropriate to ensure compliance with the ADA. However, the Department was careful to note that the lack of regulation would not excuse non-compliance.

Does your website measure up?

The DOJ is not the only agency that has been active in this realm. In 2017, the U.S. Access Board (the federal agency that promotes equality for people with disabilities) issued a regulation stating that every federal agency’s website had to comply with provisions of the World Wide Web Consortium's (W3C) Web Content Accessibility Guidelines (WCAG 2.0).  In the wake of that regulation as well as some court decisions referencing these guidelines, the WCAG 2.0 has become a generally accepted (though not legally required) tool for evaluating the accessibility of a website.

If you’re not sure whether your website is accessible to individuals with disabilities, now is the time to figure that out. In general, your website should be free of barriers that would prevent someone with a disability from fully using it. Although a retailer could potentially achieve that accessibility in a number of ways, the WCAG 2.0 recommends that the website be perceivable, operable, understandable, and robust. That clear-cut guidance doubtless answers all your questions (I’m being sarcastic), but the WCAG 2.0 also offers some specific guidance:

  • Provide text alternatives for all non-text content.
  • Be coded to work with assistive technologies like screen readers.
  • Allow users to resize the text up to 200 percent without losing content or functionality.
  • Create content that may be presented in multiple ways without losing information.  For example, a website should provide captions for all live audio content.
  • Allow for independent control of audio (for example, by allowing pausing or stopping).
  • Avoid content designs that are known to cause seizures.
  • Allow users the ability to fully navigate a website through a keyboard.

Further, your website should be accessible not only to potential customers but also to job seekers. Otherwise, you could be unintentionally discriminating against a class of job seekers.  That is problematic because those individuals may not only be highly qualified candidates, but they might also bring an ADA Title I failure-to-hire claim against your company.

This area of the law is almost certainly going to evolve in the coming years. Prudent retailers will pay attention to the trends in this area and reevaluate their websites regularly.

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