Is Your Business Website ADA Compliant?
IS YOUR BUSINESS WEBSITE ADA COMPLIANT?
When the Americans with Disabilities Act (“ADA”) was enacted in 1990, the internet was a hard-to-explain concept, and the ability to surf an endless amount commercial businesses to buy goods or services was quite foreign. Title III of the ADA prohibits discrimination against individuals based upon a disability at places of public accommodation and mandates access to public accommodations for those with disabilities. Places of public accommodation include places like stores, restaurants, movie theaters and any other commercial place of business that is open to the general public. The ADA applies to companies that employ 15 or more employees.
Although Title III of the ADA does not specifically mandate the accessibility of commercial business websites for individuals with disabilities, in recent years, there has been a dramatic increase in the number of lawsuits filed against businesses because their websites are not accessible to individuals with disabilities. In 2017, plaintiffs have filed in excess of 800 Federal lawsuits arising from allegedly inaccessible websites, including a number of putative class actions. In 2017, there have been more than 50 Federal ADA websites accessibility lawsuits in Pennsylvania and in New Jersey, there has been 4 Federal lawsuits. Courts have taken varied positions relating to whether the ADA actually applies to the accessibility of websites, what types of businesses have to have accessible websites and what “accessible websites” actually means. However, a recent New York Federal court case held that the ADA and the state civil rights laws applied to the Black Arts Materials’ website and the court approved a class settlement agreement requiring the defendant to implement the Web Content Accessibility guidelines.
The United States Department of Justice (“DOJ”) is scheduled to issue official, binding rules and regulations relating to ADA compliance of websites and online content at some point in 2018. However, until the DOJ issues its official guidance regarding requirements for ADA compliant websites, you should consider adding accessibility features to your business website. The litigation relating to business website accessibility has often shown that websites can be made ADA compliant by using the aforementioned Web Content Accessibility Guidelines (“WCAG 2.0”), which provides guidance on how to make your website/web content accessible for those with disabilities. In fact, last year the first trial concerning website accessibility concluded in a Florida federal court and the defendant, Winn-Dixie grocery stores, was ordered to comply with WCAG. Some of the WCAG accessibility features include using coding that allows for screen text reading programs to convert the text on a webpage to audio for visually impaired individuals, changing font sizes and colors, and allowing users to be able to change multimedia features. Additionally, in many settlement agreements in the cases relating to accessibility of websites, the DOJ has mandated compliance with the recommendations of the United States Access Board, which is a federal agency that encourages equality for individuals with disabilities.
It may be very important for your business to consult with a reputable web designer/consultant and legal counsel experienced in ADA compliance issues about the website accessibility of your business website. The DOJ is authorized to file lawsuits in Federal court in cases of “general public importance” or where a “pattern or practice” of discrimination is alleged and can impose penalties of up to $75,000.00 for a first violation and up to $150,000.00 penalties for subsequent violations. Also, a private party may recover equitable relief, such as a court order requiring the business to provide auxiliary aids and if the private party wins the lawsuit the federal law does allow the court to award reasonable attorney fees.
We will continue to follow developments relating to website accessibility under the ADA and we will provide an update in a future newsletter once the DOJ provides its guidance later this year.
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