In today’s world, owning and operating a website that doesn’t provide the same services to a disabled person that it provides to others, is called discrimination.
Web accessibility lawsuits against business owners, academic institutions and government services that fail to accommodate people with disabilities, are increasing at an alarming rate.
Not long ago, plaintiff’s attorney would use the Americans With Disabilities Act (the “ADA”) to file suit against brick-and-mortar facilities. The claims would often be based on drive-by inspections to uncovered the ADA violations. This theme has evolved to the web.
Just as physical locations without ramps prevent people with wheelchairs from accessing a building, websites that don't provide users with disabilities with the opportunity to receive the same experience as other viewers put the disabled at a disadvantage by ignoring their needs and excluding them.
“The power of the web is in its universality. Access by everyone regardless of disability Is an essential aspect.” – Tim Berners-Lee
The History of The ADA and Website Accessibility
Dating back to the year 2000, Bank of America became the first bank to reach a settlement with disability rights advocacy groups by making its website accessible to blind and vision impaired customers.
More recent lawsuits have made it clear that it’s not only a public space that must be ADA compliant, but also services and goods offered through a website. In other words, a website can still violate the ADA if services and goods are offered through a website, even if they aren't a bricks-and-mortar business.
Christian Antkowiak, a shareholder at Buchanan Ingersoll & Rooney and nationally sought after attorney with experience defending web accessibility cases says, “ I think what's happened over time, is that people began looking at websites as an extension of brick and mortar stores – that’s how many of us, including consumers, understand commerce in a modern economy. If you don’t think that’s accurate, just ask yourself how many people you know have migrated from big box retail shopping to Amazon Prime and the online experience.”
For instance, The National Association of the Deaf (NAD), and plaintiff Lee Nettles launched a lawsuit against Netflix for violating the Americans with disabilities act because the hard of hearing did not have full access to Netflix services and content.
Netflix argued that they were not obligated to provide accommodations required by the ADA, but the court disagreed and stated that the ADA also applies to a website only business.
Even though Netflix complied and improved their interface with easily identifiable captioned content, they were required to pay $800,000 in damages for noncompliance issues with the ADA.
How Does Web Accessibility Affect You?
Web accessibility is not a trend; it's the law. If your website is not accessible to people with disabilities, or does not comply with disability standards, your business may be at risk for a lawsuit.
Web Accessibility guidelines apply even if your business is not a bricks-and- mortar business with a physical location, and can be considered a place of public accommodation. If your website design is not accessible by the visually or hearing impaired, you may be in violation of the ADA.
Restaurant owners, financial institutions, Realtor, and home builders nationwide are experiencing an influx of litigation cases and demand letters as they become, or appear to be the ADAs next targets.
Is Your Industry At Risk With Web Accessibility Lawsuits?
“THE BEST DEFENSE IS A GOOD OFFENSE”
Web Accessibility and the Law Interview:
Christian Antkowiak, a shareholder at Buchanan Ingersoll & Rooney
Back in July 1990, before the Internet existed, the ADA focused on accessibility issues with physical spaces only.
In 2003, the department of justice deployed a technical assistance document entitled, "Accessibility of State and Local Government Websites to People with Disabilities."
Initially, this document only applied to government websites, and it was stated that compliance was voluntary.
The Department of Justice recently announced it intends to regulate website accessibility for private websites in 2018. But, in recent months federal agencies have prioritized their rulemaking agendas by dividing proposed regulations into three categories: (1) priorities for the coming year; (2) actions not expected within 12 months; and (3) the inactive list, which includes regulations that have not been formally withdrawn but have no known place in the agency’s planned rulemaking. President Trump recently moved the regulation to adopt WCAG 2.0 to the “inactive list”. The placement of the ADA website accessibility regulations on the inactive list represents a significant retreat from past positions of the DOJ.
It is this climate of regulatory uncertainty, shifting priorities, and unforeseeable intentions of the federal government that makes for a volatile and litigious environment.
And with an increasing wave of successful lawsuits against companies that include Apple, Target, and Amazon, it’s advisable that all businesses with an online presence, should invest in website accessibility by choice before they receive a demand letter or notice of litigation and are forced to comply.
Does Your Business Insurance Cover Website Accessibility Claims?
As “Whistle Blower” websites list corporate websites that are inaccessible, and your risk to be sued by advocacy groups, filing mills and plaintiff attorneys will inevitably continue to rise, you may also want to review your insurance policy to determine if you are protected against disability claims.
Some businesses have received demand letters requesting they pay the recipient of the complaint in excess of $30,000, plus the investment of bringing their website into compliance.
How Can You Make Your Web Site Accessible?
An extensive overview of Guidelines for Web Content Accessibility (WCAG) can be accessed here.
But before you dive into the WCAG Guidelines, it may be helpful to understand the types of disabilities you need to consider before you optimize your website's Content Management System.
If your website doesn't contain enough contrast to help other elements stand out, a color blind user will have difficulty navigating your site.
How to Test This Element
One quick test is to view your website in grayscale mode to determine if your website contains enough contrast that helps all elements stand out on their own.
Blindness or Visual Impairment
To help visually impaired users navigate your website with text-to-speech applications, alt-text should be provided with every image, graph and navigational item, and delivered in clear, complete sentences that explain intent.
Videos should also include text description for text-reading apps with the addition of text that explains the media type and content.
Assistive web enhancement tools, will benefit our aging population and users with hearing, vision and cognitive disabilities who are dyslexic, color blind and prefer to listen to content instead of reading it.
Providing web users with options that allow them to enlarge the font size, change color contrast and even adjust the size of the mouse pointer will prove your brand is committed to making the web a better place for everyone, by excluding no-one.
What Should You Do Next?
If you are concerned about accessibility issues with your website, a good way to get started is to speak with an experienced web accessibility consultant. This person can serve as your web tester, strategic adviser, and remediation provider to ensure you are protected against the new wave of ADA complaints and potential demand letters.
At the Bureau of Internet Accessibility, we offer a free graded report of your website accessibility. Get an obligation free automated WCAG 2.0 scan of your website.
If you would prefer to speak with our team directly, please feel free to email us or call us at, 401-830-0075, we would love to hear from you!
Additional Resources You May Be Interested In:
Are You At Risk? Take Our Web Accessibility Quiz
Download Our Website Accessibility Checklist
Get A Free Automated WCAG 2.0 Scan Of Your Website
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