Ashley L. Hanke (ashley@malkin.law) is an attorney at Malkin Law PA, a law firm based in Miami, Florida, USA, serving the alcohol beverage industry.
Nothing in this article is intended to be and should not be construed as specific legal advice.
The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in a variety of areas, including transportation, employment, and public accommodations.[1] The purpose of the ADA is to ensure that people with disabilities have the same rights and opportunities as everyone else.
With the rise of technology, the number of ADA website accessibility lawsuits has increased substantially, and it is only expected to keep climbing as reliance on the use of the internet to conduct business grows. As more businesses receive demand letters from individuals with disabilities due to alleged website inaccessibility, it is important to determine whether your business could be subject to an ADA lawsuit for noncompliance with website accessibility requirements. For me, an alcohol beverage attorney counseling importers, breweries, wineries, distilleries, and alcohol beverage brand owners, ADA website accessibility has become a hot topic, given that my clients, some of which have personally received demand letters, offer goods to the public both online and in person—sparking confusion among many who thought that the ADA did not include businesses that offer goods and services exclusively online.
When it comes to website compliance, many businesses are unclear as to whether the ADA’s accessibility requirements apply to their particular business model, since the act is often associated with physical brick-and-mortar business locations and tangible accommodations, such as wheelchair accessibility, adding elevators or stairlifts to a physical structure, or the use of braille. However, in some instances, the ADA also extends to the digital world, requiring some businesses to ensure website content is accessible to all users.
Although certain accessibility provisions don’t always apply to small businesses, such as Title I of the ADA, which requires employers with 15 or more employees to provide certain reasonable accommodations to employees but exempts private employers with less than 15 employees,[2] other provisions, such as Title III of the ADA, ensure that people with disabilities have equal access to goods and services offered at places of public accommodation, such as grocery stores, restaurants, schools, and shopping malls, regardless of the number of people employed.[3]
What are the ADA accessibility guidelines for websites?
Although there are currently no statutes or regulations that clearly define ADA accessibility requirements for websites, there has been a fair amount of case law on the topic of website accessibility, but depending on the federal circuit court, the outcomes have been mixed as to whether the ADA accessibility requirements apply to web-based businesses without a physical location. For example, the Third Circuit has held that only a physical space may qualify as a “place of public accommodation,”[4] while the First Circuit held that a physical space is not necessary for a business to be a “place of public accommodation” since public accommodations may include businesses with public-facing websites,[5] leaving businesses questioning whether the law even applies to their business model. And, to add to the ambiguity, the courts that have held that ADA accessibility applies to web-based businesses without a brick-and-mortar location have been reluctant to state with clarity what “reasonable” accessibility looks like.
Notwithstanding the circuit split, the Department of Justice (DOJ) has taken the position that Title III of the ADA covers internet website access, mobile applications, and other digital mediums, but it has refrained from issuing website accessibility regulations, leaving the courts to interpret what “reasonable” website accessibility looks like. In March, DOJ issued guidance entitled, “Guidance on Web Accessibility and the ADA,” which states, in pertinent part, that “businesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities” and that “even though businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication, they still must ensure that the programs, services, and goods that they provide to the public—including those provided online—are accessible to people with disabilities.”[6] DOJ also made clear in the newly released guidance that the department is committed to using its enforcement authority to ensure website accessibility for people with disabilities and to ensure that “the goods, services, programs, and activities that businesses and state and local governments make available to the public are accessible.”
Notwithstanding the absence of regulations setting out detailed standards for website accessibility compliance, the DOJ guidance made clear that its interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.[7]
How do I comply with the ADA accessibility guidelines?
Improving the accessibility of your website can be done multiple ways, some of which are not immediately obvious. And although in the majority of website accessibility cases courts have declined to expressly adopt the Web Content Accessibility Guidelines (WCAG) as a legal standard for evaluating accessibility,[8] DOJ has referenced WCAG standards in a number of settlements and court filings. For most businesses, working to meet the WCAG 2.0/2.1 AA criteria is considered best practice. Additionally, in DOJ’s most recent guidance, it has provided a resources section for those businesses looking to ensure that their websites are accessible, which includes reference to the WCAG standards, as well as the Section 508 information and communication technology accessibility standards set forth in the Rehabilitation Act of 1973.[9]
The WCAG 2.1 guidelines ensure that website content may be interpreted by various platforms, is easy to understand, is easily navigable, and is easily perceived. Examples of accessibility measures in the WCAG 2.1 guidelines include alternate text for images, transcripts for audio, making content readable and predictable, various keyboard accessibilities, and website compatibility with assistive technologies. Additionally, the March DOJ guidance provides a list of example practices that may improve website accessibility. Those examples include:
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“Text alternatives (‘alt text’) in images. Text alternatives convey the purpose of an image, including pictures, illustrations, charts, etc. Text alternatives are used by people who do not see the image, such as people who are blind and use screen readers to hear the alt text read out loud. To be useful, the text should be short and descriptive.
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“Color contrast in text. Sufficient color contrast between the text and the background allows people with limited vision or color blindness to read text that uses color.”
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“Video captions. Videos can be made accessible by including synchronized captions that are accurate and identify any speakers in the video.”
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“Headings. When sections of a website are separated by visual headings, building those headings into the website’s layout when designing the page allows people who are blind to use them to navigate and understand the layout of the page.”
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“Text size and zoom capability. People with vision disabilities may need to be able to use a browser’s zoom capabilities to increase the size of the font so they can see things more clearly.”[10]
Additional considerations
In addition to independently reviewing the Web Content Accessibility Guidelines and the Section 508 standards, many of my clients find it helpful to hire third-party digital compliance experts specializing in ADA website compliance that will ensure that your websites, mobile applications, and other forms of digital media are accessible through the use of website testing and website remediation using the WCAG 2.1 and Section 508 guidelines.
In light of the most recent DOJ guidance, when deciding whether the ADA accessibility requirements apply to your business, it is important to keep in mind that the long-term benefits of ensuring website accessibility will likely outweigh the costs associated with mandatory website remediation. In addition to the legal and financial liabilities that could be avoided by consulting with an expert to voluntarily ensure compliance with the ADA, website accessibility will most certainly broaden your customer base and ensure that disabled populations have equal access to your goods and services.
Takeaways
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With the rise of technology, the number of Americans with Disabilities Act (ADA) website accessibility lawsuits has increased substantially, and it is only expected to keep climbing.
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As more businesses receive demand letters from individuals with disabilities due to alleged website inaccessibility, it is important to determine whether your business could be subject to an ADA lawsuit for noncompliance.
-
While some courts have held that the ADA only applies to physical locations, the First Circuit held that a physical space is not necessary for a business to be a “place of public accommodation” since public accommodations may include businesses with public-facing websites.
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Notwithstanding the circuit split, the Department of Justice (DOJ) has taken the position that Title III of the ADA covers internet website access, mobile applications, and other digital mediums, but it has refrained from issuing website accessibility regulations.
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For most businesses, working to meet the WCAG 2.0/2.1 AA criteria is considered best practice, since the guidelines ensure that website content may be interpreted by various platforms, is easy to understand, is easily navigable, and is easily perceived.