Your Website and The American’s With Disabilities Act

One of the hot button issues these days in website design, as well as website ownership, is ADA compliance. Yes, the Americans with Disabilities Act which was signed into law by President Bush in 1990, that was put into place to protect the rights of individuals with disabilities, has been interpreted at different levels to apply to websites as well.

ADA Website Compliance

According to the Bureau of Internet Accessibility, “Titles II and III of the ADA prohibit discriminatory lack of access for individuals with disabilities to goods and services of public services and public accommodations, respectively. Title II extends a prohibition on discrimination to the activities of state and local governments regardless of whether such entities receive federal financial assistance. Title III prohibits discrimination on the basis of disability in places of public accommodation.

“The Department of Justice (DOJ), the agency charged with implementing the provisions of Titles II and III has stated in lawsuits and structured settlements that ‘no individual shall be discriminated against on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’

“The Web Accessibility Initiative (WAI) of the Worldwide Web Consortium (W3C) has created recognized international guidelines for website accessibility. These guidelines, which are set out in the Web Content Accessibility Guidelines (WCAG), detail how to make websites accessible to all individuals with disabilities. The DOJ uses WCAG 2.0 Level AA as the accepted standards in which to judge a website’s accessibility.”

What does that mean for you as a website owner? Candidly, it means that, at the very least, certain customizations must be put into place to assure you follow the law, regardless of its interpretation by various courts, so that your website can be accessed by everyone.

Make Your Website ADA Compliant

As the aforementioned interpretation of the ADA is believed to apply to all websites, it not only has become incumbent upon business owners in certain verticals that have physical locations, but as it seems to have become a cottage industry for certain attorneys as a mode of leverage for litigation against businesses, all businesses should now take steps toward ADA compliance. Further, many states require websites that are built specifically for municipalities and public institutions to be in compliance.

According to Washington D.C. based attorney Jason P. Brown, from Hunton Andrews Kurth, LLC, who has written extensively on the subject of ADA website compliance in The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019 in a recent conversation with Webvantix, indicated that, “plaintiffs’ counsel are becoming relentless on this issue and are starting to target smaller businesses.”

Brown added, one of the issues regarding compliance is that when the ADA was made the law of the land, the technology of the internet, and websites was still in its infancy, and “focused on discrimination based on disability that occurred in person or through personal interactions.” Yet, more recent attempts to clarify the law as it pertains to the internet have stalled or been met with outright failure, leading to a legal never-never land, open to interpretation by various courts.

This lack of detail has led to what Brown calls a “glut of litigation.”

For example, in 2018 Winn-Dixie was ordered to pay $250,000 (Gil v. Winn-Dixie), when it was found that its website was not ADA compliant.

Therefore, working to ensure your site is the most compliant it can be is now of paramount importance.

Legal Expert Speaks on Website ADA Compliance

In a statement forwarded exclusively to Webvantix, Brown offered some succinct advice:

“The courts, the Congress, and the Department of Justice continue to grapple with the scope of Title III of the Americans with Disabilities Act as it relates to the accessibility of private businesses’ websites for disabled people. This uncertainty can be frustrating for businesses that are attempting, in earnest, to analyze litigation risk and/or take proactive steps toward making their websites accessible. For businesses that have the financial ability to do so, the best course of action is to consult with a competent web developer who is familiar with the latest developments in web accessibility design, especially the Web Content Accessibility Guidelines established by the World Wide Web Consortium (the “gold standard” adopted by some courts), or consult with an employment lawyer if they are already facing litigation or want an acute analysis of their litigation risk.”

Okay, Now What?

While we at Webvantix are not lawyers, and we recommend that to ensure your best protection that you seek professional counsel to work with your website developer, there are steps you can take to begin the process of making your website ADA compliant to the best of your ability.

Therefore, taking those initial steps to move the needle toward compliance is critical, and can be done via WordPress plugins that allow for, among other customizations, the ability to alter text size, and color or monochrome, along with keyboard-only, or mouse-less browsing. Additionally, adding an Accessibility Statement to your website, which highlights that your site is indeed efforting accessibility, highlighting what you’ve put into place, as well as the aspects that have not been customized.

It has come to the point where all website owners must undertake the responsibility to ensure that their websites are accessible, regardless of the interpretation of the law by various courts. It’s the right thing to do, and it can protect you from what can be expensive litigation.

Be sure and review the tools below. While by no means an exhaustive list, they will provide a strong jumping-off point for business owners and developers.