Website Accessibility and the ADA: The Clear and Present Dangers
In 1990, the United States Congress enacted the Americans with Disabilities Act (ADA) to provide protections and accommodations for the millions of disabled Americans. Perhaps the most ground breaking impact of the ADA is enumerated under Title III which states that “[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.”
Title III of the ADA by its very definition applies to “any place of public accommodation” and resulted in the enforcement of the Act against business establishments to implement accessibility standards to ensure equal enjoyment by disabled individuals. What ensued were a multitude of lawsuits where the ADA was used to ensure that retail stores, office buildings, and business establishments physically altered their structures to allow persons with disabilities equal and free access. While the ultimate ends to achieve accessibility was necessary, the means employed resulted in astronomical expenses in the form of construction costs, attorney fees and statutory penalties.
Internet
The accessibility standards under Title III have recently taken a new and dramatic turn. When the ADA was adopted, the advent of the Internet was in its early stages and the legislature did not contemplate or foresee the need to regulate the rights of individuals with disabilities to access commercial online websites.
The visually impaired were certainly at a disadvantage as the presence of online retailers became ubiquitous via the Internet. Invariably this led to the recent number of lawsuits filed against retailers with an online presence for violations of ADA Title III website inaccessibility.
Since January 2015, over 106 lawsuits have been filed in the Federal Courts alone. Recently, the courts have expanded the reach of Title III to retailer websites that offer and sell goods or services to the public. Equally, the Department of Justice (DOJ) announced it will issue formal regulations regarding website accessibility. The regulations will specially include requirements to allow website accessibility for the visually impaired.
Online retailers and commercial vendors face exposure to lawsuits filed by plaintiffs for violation of the ADA website accessibility. This litigation is exacerbated by the lack of clear compliance requirements, as there is no definitive case law or statutory interpretation, to guide the online provider.
Website Accessibility Litigation
Online retailers appear to be the new targeted industry for website accessibility lawsuits filed by “disability advocates" filed predominantly in California. Recent court decisions have provided some insight as to how the courts will rule on website accessibility cases.
In Davis v. BMI/BNB Travelware Company, the court granted plaintiff’s motion for summary judgment finding that the online retailer’s website did not comply as a matter of law with the accessibility requirements of Title III of the ADA and California’s statutory counterpart, the Unruh Civil Rights Act.
In the March 21, 2016 ruling, the San Bernardino County Superior Court of California found “a [sufficient] nexus exists between defendant’s retail store and its website that directly affects plaintiff’s ability to access [goods] and services.” The plaintiff was awarded $4,000 in statutory damages and attorneys’ fees.
In National Federation of the Blind v. Target Corp., the United States District Court for the Northern District of California allowed a class action lawsuit to proceed, ruling that a website is a public place of accommodation and a retailer may be liable if its website is inaccessible to the blind. The plaintiffs are a class of blind individuals who alleged that Target’s online shopping website was inaccessible to the visually impaired. This lawsuit is ongoing and there has been no final determination by the court.
Web Content Accessibility Guidelines
The World Wide Web Consortium, which acts as the international standards organization for the World Wide Web, published level AA success criteria in the WCAG. The DOJ and Courts have used these guidelines as a means to evaluate the accessibility of commercial web pages for individuals who are visually impaired under the ADA. Accordingly, online retailers can look to the WCAG 2.0 for some guidance to ensure website accessibility for their respective websites.
The visually impaired individual typically has software which acts as a screen reader that converts text to audio. The WCAG 2.0 guidelines recommend that online retailers provide text alternatives for non-text content; such as providing text captions for multimedia that can translate photographs and videos.
The guidelines recommend making it easier for users to see and hear content, by using easy to read fonts and graphics and making text understandable. Additionally, it is recommended that websites include features that help users navigate and find content easily. Finally, to ensure compliance, the guidelines address the importance of maximizing the website’s compatibility with different types of user tools and software that visually impaired individuals employ to navigate websites.
The website accessibility standards, or the lack thereof, present a possible new legal frontier that will develop in the months and years ahead.