The Americans with Disabilities Act (ADA) requires certain businesses to make accommodations for people with disabilities. Are you in compliance?
[This post was previously published in June 2019. It has been updated and revised to provide the most up-to-date information.]
What this means for most organizations is that their web content must be accessible to the blind, deaf, and others who must navigate by voice, screen readers or other assistive web technologies.
Making Sense of ADA-Website Compliance
According to an article from Business News Daily,
- Businesses that fall under Title I, those that operate 20 or more weeks per year with at least 15 full-time employees, or Title III, those that fall under the category of "public accommodation," are covered by the ADA.
- There are no clear regulations defining website accessibility.
- Failure to create an ADA-compliant website could open a business to lawsuits, financial liabilities and damage to your brand reputation.
Perhaps the biggest issue with ADA website compliance is that there are no clear rules. Previous court decisions have not established clear or federally codified directions on how to make websites comply. Unfortunately, businesses must still provide accessible websites that accommodates users with disabilities.
So, how does a business build an ADA-compliant website if there is no clear definition of how to best achieve that?
It Doesn't Pay to Ignore ADA Website Compliance
The number of website accessibility lawsuits filed under Title III of the ADA in 2018 reached more than 2,250 in total. This is an increase of 177 percent over the 814 lawsuits from the year before.
It was expected that the number of such lawsuits would drastically increase in California in 2019 after the 9th U.S. Circuit Court of Appeals overturned a lower court's decision to dismiss a website accessibility lawsuit against Domino's.
According to an article at Fortune magazine's website,
"The ADA has been law for decades—it turns 30 in 2020—but it’s spurring a new wave of digital-era lawsuits. The civil rights law applies to businesses with 15 or more employees, including state and local governments, and also applies to places of public accommodation. According to calculations by the Chicago-based law firm Seyfarth Shaw, the first half of 2019 saw a 12% increase in ADA Title III lawsuits filed in federal court over the same time period in 2018 (5,592 vs. 4,965). The reason: Digital assets, primarily websites that are meant to serve the public, don't always offer accessibility features for people with disabilities."
The article goes on to note that, "Quite frankly, it’s become a cottage industry among plaintiffs' attorneys," says Thomas Barton, an employment attorney at law firm Drinker Biddle & Reath LLP’s Philadelphia office.
While it is true that the compliance issue lends itself to predatory practices by unethical attorneys looking for "easy paydays", it's still in the best interests of any business to achieve compliance as soon as practical.
ADA-Compliant Website Best Practices
Fortunately, There are widely accepted steps you can take to achieve ADA compliance, or at least be able to demonstrate that your organization has made a good-faith effort toward accommodation. These efforts are critical should you ever wind up in court. A good first step is to read the ADA requirements.
Here are some common best practices for addressing web content accessibility issues:
- Create alt tags for all images, videos and audio files: Alt tags allow users with disabilities to read or hear alternative descriptions of content they might not otherwise be able to view.
- Create text transcripts for video and audio content: Text transcripts help hearing-impaired users understand content that would otherwise be inaccessible to them.
- Identify the site's language in header code: Making it clear what language the site should be read in helps users who utilize text readers.
- Offer alternatives and suggestions when users encounter input errors: Your site should automatically offer recommendations to users with a disability as to how to better navigate toward the content they need.
- Create a consistent, organized layout: Menus, links and buttons should be organized so that they are clearly delineated from one another and easily navigated throughout the entire site.
Your Website May be Subject to ADA Title III Compliance
While it may not seem apparent to computer users without disabilities, the fact is that many websites actually are difficult, if not impossible, to access for those with certain disabilities.
Of the more than 2,200 lawsuits filed in 2018, 11 percent of those were filed against food service establishments. Since everyone needs food and almost everyone likes to eat out, these websites should be accessible to everyone.
According to an article at Modern Restaurant Management,
"Common website accessibility issues can include individuals with vision or hearing impairments who may require assistive devices and specialized software to access the internet. For those with a visual impairment, this may include software that enables them to magnify the content of a webpage, reads the content to them or enables them to use a braille reader. Some individuals cannot use a mouse and can only navigate with a keyboard, touchscreen or voice recognition software. For those with hearing impairments, the issue is often that audio content on the website does not include closed captioning or images do not include captions."
When designing a website, it should not only accommodate these impairments, but also recognize the current adaptive software and technology that can be used to achieve the desired results.
The Web Content Accessibility Guidelines (WCAG) provide web designers with standards for making web content more accessible for website visitors with disabilities. The DOJ has stated that websites which comply with the standards of the WCAG 2.0 AA are considered “accessible.”
Prior cases have established that this is the standard the DOJ has used in its settlement agreements and consent decrees with businesses. In addition, it'is also the standard adopted in January 2017 for federal government websites. Consequently, companies that follow these standards should have a defensible position in case of a lawsuit.
An article in the New York Law Journal notes that,
"In sum, Title III of the ADA states in pertinent part: 'No 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.'"
Although the language in the ADA’s text does not address websites specifically, the U.S. Department of Justice (DOJ), which is responsible for regulating and enforcing the ADA, has always viewed websites that offer goods or services to consumers to be “places of public accommodation,” and must, therefore, be accessible to the disabled.
The New York Law Journal article goes on to state that,
"The DOJ, and now many courts, have accepted the Web Content Accessibility Guidelines (WCAG) 2.0, which were developed by the World Wide Web Consortium, as the applicable standard for website accessibility compliance, although many have rightly complained that guidelines provide insufficient clarity for remediation and ongoing compliance purposes."
Defensive Steps for California Business Owners
Because the likelihood of being on the receiving end of a complaint, companies should take the stance that an ADA website lawsuit must be proactively avoided. In addition, having experience legal counsel can help to resolve any claims that are made efficiently and economically
The author of the New York Law Journal article offers these practical actions that businesses can take include:
- Assume your company will be sued. Pretty much any business with a website, especially one that offers products of services online, is a target.
- Once received, do not ignore a complaint. Timeliness is crucial for an effective defense. "Most cases in which the target entity has a clearly non-compliant website settle within two to six months..."
- Consult knowledgeable counsel regarding available defenses. Fortunately numerous prior defendants have spent time and money to test the boundaries and best defense strategies for ADA website claims.
- Understand the nuances of the settlement process. "...there are many negotiable terms that can provide a defendant with added layers of protection from ongoing compliance obligations, future claims of breach of the settlement agreement or follow on claims by other plaintiffs."
Professional Help for Managing Labor Law Compliance
Outsourcing HR functions is an increasingly common strategy for small businesses and the advantages are worth asking about. In addition to reducing your in-house costs, increasing accuracy and security, you can also benefit by freeing your HR resources for improving operational functions, recruiting efforts, and training.
When it comes to payroll management, you have several options for your HR and payroll staff. Software that can be installed in-house, or cloud-based programs offer a good alternative. But if you really want to take full advantage of the benefits available to you, outsourcing to a provider like Accuchex can still be the best decision.
Reliability, full-service options, and reputation are the hallmarks of a quality HR management service provider. If you are currently looking to invest in outsourcing you get your Free Download: California Labor Law guide to help you make an informed decision ;or call Accuchex Payroll Management Services at 877-422-2824.