Companies are becoming more aware of the need for their websites to be accessible to people with disabilities. But what does this mean and what are the legal requirements? The current state of the law is in flux and the fact is, there is no clear set of criteria to which a company can look with assurance for the prerequisites of a fully and legally accessible website. That said, there are some steps a company can take to reduce its exposure to an ADA claim.
Website accessibility means that there are no barriers that prevent interaction with or access to the website by people with disabilities. The objective is to design a website that all users, regardless of disability, have equal access to the information and functionality of the website.
There are many disabilities that can be implicated in viewing a website. For example, individuals with visual disabilities such as blindness or colorblindness can be challenged in looking at websites. Individuals who are deaf or have other hearing impairments can have problems if the website includes listening to audio. A website which includes strobes or flashing can trigger a seizure in people with seizure conditions. There are also a variety of developmental disabilities such as dyslexia, memory, attention and executive function disabilities which can be challenged when looking at a website.
The ADA prohibits discrimination on the basis of disability by public accommodations and requires that goods, services, privileges, and activities offered by a public accommodation must be accessible to disabled individuals. Organizations such as the National Association of the Deaf have brought class action suits alleging that organizations discriminated against disabled individuals by failing to provide “auxiliary aids or services” (a requirement under the ADA) in online and digital tools.
The Problem
The U.S. Department of Justice issued proposed regulations concerning the accessibility of online and digital resources several years ago. These proposed regulations would have provided objective criteria for compliant websites. However, on December 26, 2017, the Department of Justice withdrew these proposed regulations. Companies want to be compliant with applicable legal requirements, but when it comes to website accessibility, there are no definitive technical standards. There is not a checklist a company can follow to confirm its website complies with the ADA. One set of guidelines often used are the Web Content Accessibility Guidelines (WCAG 2.0). However, the Department of Justice has stated that noncompliance with any voluntary technical standard (such as WCAG 2.0) does not mean a website violates the ADA, nor does compliance with a voluntary technical standard mean there is compliance.
What Should a Company Do?
We recommend that companies assess their websites using tools such as the WCAG 2.0 to determine if their websites are accessible to disabled individuals. In many cases, to enable and assist web browsing, the addition of various assistive technologies may be necessary. This evaluation can be performed by outside consultants or internal staff who are familiar with the WCAG 2.0 and other tools that assist in determining if a website is accessible.
Even with such evaluation and resulting modifications, there is no certainty that the website complies with the ADA. Ignoring the issue is not an option. Even though a company may not have certainty that its website complies with the ADA, the company’s good-faith efforts to become compliant and explore assistive technologies can be critical in the event of a legal claim.