USA: Robinson & Cole discuss Website Accessibility and Compliance with the Americans With Disabilities Act
Authored by William Egan, Kathy Porter and Ian Clarke-Fisher
This article is the first part of a series on the ADA and website accessibility. Next in the series is an article exploring ADA compliance issues for foreign owned website owners doing business in the U.S.
More than 10,000 lawsuits were filed and almost a quarter million demand letters were sent to companies over the past two years, alleging claims that those companies’ consumer-facing public websites failed to provide adequate accessibility to the visually or hearing impaired. These lawsuits and demand letters generally allege a violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189, or similar state laws, or both. (For example, see California’s Unruh Civil Rights Act or New York State and City Human Rights Laws.) Additionally, some newer data privacy laws and regulations, such as § 999.306(a)(2)(d) of the California Consumer Privacy Act (CCPA) regulations, specifically require businesses to make the law’s required privacy-related policies, notices and disclaimers reasonably accessible to consumers with disabilities. And, the CCPA regulations require that the website provide information on how a consumer with a disability can access the notices and policies in an alternative format.
These lawsuits and claims are most frequently brought by attorneys for private individuals who demand that the websites be modified to comply with the requirements of the ADA, and also seek the payment of monetary damages for the alleged harm suffered by the claimant. Often these demand letters and lawsuits threaten a class action. Companies with consumer-facing websites may wish to take prompt action to evaluate or update the accessibility features of their websites to avoid complaints and to provide website accessibility for their products and services.
The ADA states that a place of public accommodation engages in unlawful discrimination if it fails to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” 42 U.S.C. § 12182(b)(2)(A)(iii). Remedying a consumer-facing website to provide for adequate accessibility includes properly coding the site so that a visually- or hearing-impaired person can more easily access the content and navigate the website, including the purchasing process. Concerningly, the law and related guidance do not currently provide clear standards on what constitutes compliance with the ADA. Nevertheless, it is generally accepted that compliance with the ADA generally involves adhering to Web Content Accessibility Guidelines (WCAG) that are promulgated by an organization known as the World Wide Web Consortium (W3C), which publishes accessibility guidelines that are widely adopted as acceptable standards. The most recent standards as of June 5, 2018, are WCAG 2.1AA; an updated WCAG 2.2 set of standards is expected to be released later in 2022. Section 999.306(a)(2)(d) of the CCPA regulations requires businesses that provide notices and privacy policies online to “follow generally recognized industry standards,” such as WCAG version 2.1.
Visually-impaired visitors to websites will often use screen readers and other software such as JAWS (Job Access With Speech) or VoiceOver to allow better access to the content on websites, including vocalizing the images and content. Hearing-impaired consumers require features such as subtitles or captions for audio portions of files. WCAG standards provide detailed information on color contrast, non-mouse navigation, audio descriptions of images and captioning of audio files, and multiple other details that allow a visually-impaired or hearing- impaired visitor to the website to more fully access and navigate its content.
Federal courts have split on whether the ADA’s “places of public accommodation” are limited to physical spaces or can extend to virtual or digital spaces. Courts in the First, Second, and Seventh Circuits have held that a website can be a place of public accommodation, while courts in the Third, Sixth, and Ninth Circuits have held that there must be a “nexus” between the company’s website and an actual physical location. The Eleventh Circuit, in Gil v. Winn-Dixie Stores, vacated a lower court decision and held that websites are not covered as places of public accommodation. See Gil v. Winn-Dixie Stores 242 F. Supp. 3d 1315, 1316 (S.D. Fla. 2017). And courts have reviewed the issue of whether the ADA applies to both mobile applications and websites. For example, in 2019, the United States Supreme Court declined to review a Ninth Circuit decision holding that (1) Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (Title III) covers websites and mobile applications and (2) the imposition of liability on businesses for not having an accessible website and mobile application does not violate the due process rights of public accommodations. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019).
Similarly, the Department of Justice’s (DOJ) position has been muddled over the last decade. In 2010, the DOJ issued a notice of rulemaking on whether business websites, including those unconnected to an actual physical space, are “places of public accommodation” under Title III of the ADA.” During this period, the DOJ also brought enforcement actions against businesses with websites that were allegedly inaccessible and moved to intervene in web accessibility cases. But, thereafter. DOJ continually postponed the date of any final rulemaking. Then in late 2017, the DOJ’s rulemaking notice and all guidance on website accessibility under the ADA was removed from its website and the DOJ stopped commenting on or intervening in ADA website litigation. In March of 2022, the DOJ published new guidance on an official beta-website, which appears to suggest the DOJ is reverting to its pre-2017 position that Title III of the ADA requires all businesses, even those of web-only businesses, to be accessible to persons with disabilities. See https://beta.ada.gov/web-guidance/
Despite this somewhat confusing federal landscape, most companies will want to avoid the risk of liability and the costs of defending a claim or law suit alleging that their website is not accessible. Moreover, many companies also will wish to have their products and services be accessible to as much of the public as possible and allow the greatest number of people to have access to the content on their site. Having a website that is substantially compliant with the latest WCAG standards (which are required under the CCPA regulations) can help avoid liability, increase visibility and sales, and provide access to as many groups as reasonably possible. And including an Accessibility Policy Statement on a website is also helpful to demonstrate compliance with the ADA and a company’s commitment to accessibility, as well as to provide information on how notices and policies can be accessed in an alternative format.
If a letter or complaint alleging non-compliance with the ADA and demanding remediation and payment is received by a company, a prompt review of the website by a qualified technician or professional should occur to determine if there is any validity to the claims. If the claims are baseless, a detailed response can be provided to the claimant’s attorney setting forth the compliance and accessibility, and requesting that the demand letter be withdrawn or the case dismissed. If there is any concern or dispute regarding compliance, one of three outcomes generally occurs:
1.) Settlement: Most claims and cases are resolved quickly through a settlement whereby the company agrees to improve the website to meet accessibility standards, and make a small settlement payment. The payment is usually shared between the attorney and the client making the claim, and a settlement agreement is often entered into that provides for the dismissal of the lawsuit (if one has been filed), a release of claims against the company, a confidentiality agreement confirming that the claimant will not discuss the payment and settlement, and an agreement to remediate the website to be accessible and ADA-compliant or confirmation that such remediation has already occurred.
2.) Dropped Claims: Some demand letters or lawsuits are initiated as part of a group of letters or lawsuits sent by the same lawyer and plaintiff to a batch of defendants or target companies. If one or more of those companies do not respond, the lawyer may simply choose not to pursue that claim or lawsuit and the case may eventually be dismissed by the court or the demand letter may simply remain unanswered. The risk in not responding to a complaint filed in court, however, is that if the plaintiff does pursue its claims absent any response from the company, a default judgment may be entered in court against the company. Therefore, opting to ignore a lawsuit might be a dangerous choice and should be considered carefully.
3.) Litigation: A few cases do proceed with extensive litigation and some to trial. The larger the company, and the more information a company has that leads it to believe it is not in violation of the ADA requirements, the more it may make sense for the company to reject the demand or deny the claims in the complaint and defend itself in court. The costs of litigation, especially class action litigation, can run into the hundreds of thousands of dollars or more, so most companies seek an early and low-cost settlement and dismissal, with confidentiality and release language.
In summary, prior to receiving any complaint, companies may wish to confer with their internal or external technical staff to determine if the company’s website complies with accessibility guidelines, or engage an outside company to provide that analysis and services. Having periodic or routine technical monitoring of the website as it is modified going forward is also important to avoid falling out of compliance over time. And developing a training program for internal personnel who work on the website as well as setting forth a company’s accessibility policy statement on the website also are helpful in providing the greatest accessibility to existing and potential customers. Finally, if a demand letter or complaint is received, it usually is a good idea to review the claims with the company’s legal counsel to determine if there is any merit to the allegations and to seek an early and inexpensive resolution of the claims to help avoid further exposure and expense to the company.