Websites too face regulatory issues around compliance with the Americans with Disabilities Act and other rules involving accessibility and accommodation. In this Insight, we provide a brief overview of the state of laws and rules around website accessibility in the US, including the position taken by the Department of Justice that the Americans With Disabilities Act (ADA) applies to public-facing websites utilized by places of public accommodation; the current status of proposed regulatory action to establish regulatory standards for website accessibility; and the developing judicial guidance.
Background on ADA's applicability to websites of public accommodations
Title III of the ADA prohibits discrimination against those with disabilities in places of public accommodation. 42 U.S.C. § 12182(a). Title III and DOJ regulations define a "place of public accommodation" as a facility operated by a private entity whose operations affect commerce. 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104. Title III requires that public accommodations communicate effectively with individuals with disabilities and provide:
- Accessible facilities
- Reasonable modifications to policies, practices and procedures to accommodate individuals with disabilities when required and
- Appropriate auxiliary aids and services at no additional charge for individuals with speech, hearing or vision disabilities.
In 1990, when the ADA was enacted, the Internet was still a few years away from mainstream use, so this legislation doesn't directly address whether "public accommodations" include websites, mobile apps and the like. But the DOJ has interpreted Title III to apply to websites, online tools and mobile applications of places of public accommodation.
In 2010, the DOJ issued an Advanced Notice of Proposed Rulemaking (ANPRM), titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (75 Fed. Reg. 43460). The ANPRM asked, in part, what website accessibility standards the DOJ should adopt for websites of places of public accommodation. One option, which has become the de facto standard, was the World Wide Web Consortium's (W3C) Web Content Accessibility Guidelines 2.0 with AA (intermediate) success criteria (WCAG 2.0 AA).
In March 2014, without any final rule in place, DOJ and a tax preparation company entered into a consent decree in which the company agreed to make its website, mobile applications and tax preparation tool comply with WCAG 2.0 AA. The DOJ consent decree adopted WCAG 2.0 AA as the standard for making websites and mobile applications accessible to persons with disabilities and ADA-complaint.
Since 2014, the DOJ has brought numerous enforcement actions based on WCAG 2.0 AA as the standard for website accessibility.
The prior Administration's settlements to date have typically required:
- Conducting annual accessibility testing
- Using an independent consultant to audit website and mobile application accessibility
- Posting a notice on website providing an email address and toll-free number to provide assistance with accessibility-related problems and soliciting feedback on how to improve the website
- Developing website accessibility policies or revising existing policies
- Providing employee training on accessibility requirements
- Obtaining commitments from vendors to conform content to comply with WCAG 2.0 AA through contractual provisions
- Designating an employee as a website accessibility coordinator
- Reporting to DOJ in detail on ADA compliance (or lack thereof)
- In limited cases, providing financial payments to aggrieved individuals
Further – and again in the absence of regulations – private ADA litigation (either from individuals or advocacy groups) has greatly increased in recent years (with over hundreds of lawsuits filed), with some recent decisions affirmatively requiring companies to bring their websites into compliance with WCAG 2.0 (previously, courts had approved consent decrees).
In some cases, the courts have recognized that a company may demonstrate that making modifications would fundamentally alter the nature of the goods or services being provided or would result in an undue burden. However, many of the cases turn on the fact that websites are limiting access notwithstanding the fact that accessible technology is both readily available and cost effective and that there was no plan or policy in place that reasonably calculated making a company website accessible.
In addition, plaintiff's law firms have aggressively pursued businesses for perceived non-compliance with the website accessibility requirements by mailing demand letters seeking non-public settlements.
What is WCAG 2.0 AA?
WCAG 2.0 AA has four principles – perceivable, operable, understandable, and robust – under which are twelve guidelines. These guidelines are designed to provide a framework for making content more accessible. Among the guidelines are the following:
- provide text alternatives to non-text content
- provide keyboard functionality
- provide users enough time to read the content
- avoid using content that may cause seizures
- provide input assistance
Website accessibility under the Trump Administration and unresolved questions
On December 26, 2017, the Trump DOJ officially withdrew the Obama DOJ's ANPRM (82 Fed. Reg. 60932), stating that it is "evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate." This withdrawal leaves it up to the courts – at least in the near future – to decide when and how Title III of the ADA applies to websites of places of public accommodation.
Therefore, because courts have taken a diverse approach to this issue, companies providing a place of accommodation with a public-facing website should consider taking a thoughtful, measured approach to address accessibility issues as part of website design. In addition to whether WCAG 2.0 AA ultimately is the appropriate standard for website accessibility, additional threshold questions remain. For example:
- Does a place of public accommodation include a company with no brick-and-mortar consumer-facing presence?
- While the DOJ has brought enforcement actions against such companies, such as online universities, courts are split. The Third, Sixth, Ninth and Eleventh Circuits have held that the ADA only applies to website accessibility if the inaccessibility has a nexus to the goods and services in a physical location. The First and Seventh Circuits, however, do not require a nexus to a physical location. Because many companies today are digital only, this split approach leaves many companies unsure how to proceed even if they primarily operate in a jurisdiction that requires a physical nexus so long as they reach consumers in a jurisdiction that does not.
- If WCAG 2.0 AA is the standard, then what constitutes compliance? For example, does every single image on a website need to have a textual description, or only those necessary for using the website? Can a statement to call or email for help suffice?
Bringing a website into WCAG 2.0 AA compliance requires development and implementation of a clear plan for compliance, careful planning and thoughtful design. Companies, with the assistance of counsel, should take proactive steps to address these risks and ensure that their websites, online tools and mobile applications are ADA-complaint over a short- and long-term horizon. For more information on ADA compliance, please call the authors of this Insight.