You may be surprised to know that if your website is not accessible to the visually and hearing impaired you are currently in violation of the Americans with Disabilities Act, otherwise known as the ADA. That’s right—the Department of Justice (DOJ) has deemed websites within the scope of the ADA and a flood of demand letters have been overwhelming businesses ever since. What does this mean exactly? This means that your website needs to be equally accessible to the visually and hearing-impaired as those without disabilities or else you could face costly lawsuits from customers, employees, and the DOJ.
Title III of the ADA prohibits discrimination against individuals “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.” Places of “public accommodation” are defined by the ADA as including over 5 million private establishments such as, restaurants, hotels, theaters, convention centers, retail stores, shopping stores, laundromats, doctor’s offices, and many more. The language of the ADA led business owners, and even many courts, to believe that in order to be a “public accommodation” covered under the ADA, it needed to be a physical location of business. Unfortunately, the NBA, Target, Patagonia, Ace Hardware, Bed Bath & Beyond, J.C. Penney, Home Depot and many other corporations can attest to just how misguided this belief was.
Target attempted this very argument in a class action suit brought against it by the National and State Associations of the Blind and Blind Customers. The plaintiffs alleged that Target’s website was inaccessible to the blind in violation of the ADA. In its defense, Target argued that its website was not a physical location and was therefore not a “public accommodation” covered by the ADA. The California court disagreed and ruled Target’s website a public accommodation under the ADA. Anticipating a harsh ruling, Target ultimately settled with the plaintiffs for a reported $6 million.
The Target case is by no means a rare one. These cases are driven in large part by Title III’s provision entitling a prevailing plaintiff to attorneys’ fees and costs. This provision has not gone unnoticed by plaintiffs’ attorneys who have sent hundreds of form demand letters to businesses all over the country demanding website upgrades and lofty payments as conditions of avoiding litigation. While those potential costs from private parties are enough to cripple businesses alone, the DOJ has intervened into several of these cases taking the potential financial liability to new heights. With the DOJ intervening as a party, a defendant would potentially be liable for compensatory damages and a civil penalty of up to $75,000, in addition to damages sought by the private party plaintiff.
Yet, while plaintiffs’ attorneys continue to demand settlement payments and the DOJ continues to file lawsuits, the DOJ has failed to issue proposed regulations for website accessibility and has informed the public that it will not do so until 2018. As a result, many businesses are left vulnerable to costly lawsuits while being put in the quandary of not knowing what they should be doing to mitigate legal risks in the area. Fortunately, we are able to piece together ADA compliance standards to follow in the meantime through a comprehensive review of the federal district court cases where this issue has been litigated and of the standards set forth as benchmarks in the settlements of cases involving the DOJ to derive what businesses should implement to avoid legal trouble.
From that review it is clear that to be in compliance with the ADA, a website needs to follow the set of guidelines developed by a private industry group called the Web Content Accessibility Guidelines, or WCAG, 2.0, Level AA. These requirements can be found at: https://www.w3.org/WAI/WCAG20/quickref/. Those guidelines give precise instructions on how to make websites accessible for customers and employees with disabilities in compliance with the ADA. That being said, implementing these technological upgrades into a website is an expensive venture and businesses should prepare for the financial realities of this change.