Thirty years ago, before the Internet, the Americans With Disabilities Act (ADA) was signed into law by President George H.W. Bush. Today an estimated 25-percent of all Americans have some level of disability.
There are no clear ADA regulations that define what compliant web content means, but if your business falls under ADA Title I or ADA Title III, your website needs to be “reasonably accessible” to persons with disabilities according to the ADA.
Since the law’s enactment, a cottage industry has grown around it with thousands of lawsuits filed every year by Plaintiff attorneys alleging non-compliance and discrimination to the blind and visually impaired, including products sold on the Internet. And often, a single Plaintiff’s attorney will file dozens or more lawsuits against multiple companies seeking injunctive relief and attorneys’ fees allowable under the law.
The lawsuits have targeted large and small businesses across multiple industries, including the outdoor industry, over alleged website compliance violations. To date, neither the Congress nor the Department of Justice (DOJ) — the primary federal government agency responsible for enforcing the ADA — have clarified the law in terms of website accessibility compliance as it applies to companies.
The problem lies in the law itself. In 1990, when it was enacted, the Internet did not play a vital role in business nor in our daily lives. Title III focuses on discrimination based on disability through personal interaction with companies — it does not guide web-based and mobile content. Nor does the law limit coverage to brick & mortar businesses or exclude online sites.
The lack of clarity is problematic for companies that want to comply with ADA requirements but do not have the resources to update their sites according to the Web Content Accessibility Guidelines.
While the courts and the DOJ have provided some guidance, Congress has not. Since 2003, the DOJ has attempted to create a uniform position regarding ADA website accessibility, but the language is vague. Regardless, the DOJ continues to state that publicly-accessible websites must also be accessible to persons with disabilities.
While ADA lawsuits were once focused on the physical access barriers to businesses, the latest lawsuits allege that private company websites qualify as places of public accommodation and sites without compatible screen-reading software deny plaintiffs the right of equal access. Plaintiffs have also challenged the accessibility of mobile applications and online job sites.
Ideally, the courts will use the DOJ’s guidance as a way to dismiss website accessibility lawsuits against companies who have made an effort, even if their efforts are not perfect. Some companies have demonstrated accessibility by offering a 24/7 phone number to provide information otherwise available only on their websites.
Ultimately, Congress will need to pass legislation regarding ADA website accessibility. Companies should take proactive steps toward making their sites ADA accessible, including job sites. And if a company operates a website and conducts business across multiple states, compare the site format with both the DOA and judicial guidelines to also evaluate risk.