Title III of the Americans with Disabilities Act (ADA) of 1990, 4 U.S.C. § 12101 et seq., prohibits discrimination in places of public accommodations on the basis of disability. Places of public accommodations are facilities operated by private businesses that are open to the public and fall within at least one of the categories set forth in the ADA, including hotels, restaurants, bars, retail stores, auditoriums or other places of public gathering, museums, libraries, banks, medical centers, educational facilities, or recreational facilities. Newly constructed places of public accommodation are required to adhere to certain ADA accessibility standards in order to make their establishments available to persons with disabilities.

As technology advanced, many traditional places of public accommodation began to offer services online. However, the nature of websites makes them difficult to access for many disabled persons. Inaccessible websites discriminate against disabled persons by failing to provide equal access to the products, services, and resources made available on the website. Although the ADA does not specifically address the accessibility of online services, the Department of Justice (DOJ) has determined that the ADA applies to publicly accessible websites of private entities whose physical locations would otherwise be subject to the ADA accessibility standards. An inaccessible website, the DOJ determined, provides similar barriers to disabled persons as an inaccessible building. The courts in some jurisdictions have also held that the ADA also applies to websites where the business does not operate a publicly accessible physical location. For example, a Massachusetts district court held that Netflix’s website is a place of public accommodation that must comply with the ADA, despite Netflix’s lack of a public physical location.

If you operate a website that qualifies as a place of public accommodation, the ADA and relevant court rulings require that your website provide equal access to and enjoyment of your web content to disabled persons. In March 2022, the DOJ released Website Accessibility Guidance providing guidelines for making websites accessible. Those guidelines are designed to makes websites navigable by disabled persons and the technologies they use to access the Internet, such as screen readers, audio captioning, and voice recognition software. The recommendations in the DOJ’s Website Accessibility Guidance include the use of:

  • contrasting color between the text and background to make text stand out for the visually impaired;
  • text cues to identify important information, in addition to or instead of color. For example, using text to indicate a field is required rather the color red, which might not be seen by users who are colorblind;
  • alt text to describe an image or its purpose;
  • captions or transcripts for audio files;
  • headings; and
  • keyboard navigation technology.

For the entire Web Accessibility Guidance from the DOJ, visit this website: https://beta.ada.gov/web-guidance/
The DOJ’s Website Accessibility Guidance also recommends businesses implement the Website Content Accessibility Guidelines (WCAG) released by the World Wide Web Consortium, the international standards organization that develops guidelines for the Internet, to provide a single standard for website accessibility. The WCAG provide guidelines for making web content more accessible, including text, image, video, and audio, as well as code.

If your business has a public website, you may be subject to the ADA accessibility requirements. Ask your web developer to confirm your website’s compliance with the DOJ’s Website Accessibility Guidelines and the WCAG. The latest version of the WCAG can be found here: https://www.w3.org/WAI/standards-guidelines/wcag/

In recent years, the number of ADA lawsuits related to inaccessible websites has increased dramatically. According to recent reports, two-thirds of lawsuits are filed against businesses with revenue of less than $50 million[1]. Therefore, disabled plaintiffs are not just targeting ecommerce giants. Although website ADA violation lawsuits do not generally result in damages, businesses found out of compliance are responsible for plaintiff’s attorneys’ fees and correcting any inaccessibility issues of the website. Most cases settle out of court to avoid significant legal costs and attorneys’ fees yet can still result in expensive settlements. The costs of making your website ADA compliant now are significantly less than addressing ADA violation claims in the future.

 

[1] https://www.wsj.com/articles/lawsuits-over-digital-accessibility-for-people-with-disabilities-are-rising-11626369056

 


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