A new wave of lawsuits filed under the Americans with Disabilities Act (ADA) has business owners scrambling to understand their risk exposure. Lawyers representing blind and low-vision, hearing-impaired, and physically disabled users claim that many websites’ programming code fails to meet the current web content accessibility guidelines (WCAG 2.0). These failures deny those users equal enjoyment of the affected websites and thus constitute discrimination. The U.S. Department of Justice (DOJ), which enforces the ADA, has backed these plaintiffs and put the onus on defendants to make expensive remediation efforts to comply with the law.
One recent decision in the Southern District of Florida is Gil v. Winn-Dixie Stores, Inc. The plaintiff argued that defendant’s website was inaccessible to the visually impaired. Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” 42 U.S.C. § 12182(a). The court stated that when a website is heavily integrated with physical store locations, the website is a service of a public accommodation and covered by the ADA. As a result, the court found that the defendant’s website was not accessible to visually impaired individuals who must use screen readers to view the website and granted an injunction to ensure the website was in compliance with the ADA.
The cost of proper remediation can range from tens of thousands of dollars to the high-six-figures. Big companies like Target, which spent nearly $10 million in restitution and legal fees in a landmark case brought by the National Federation of the Blind, can bear that financial hit. But small and mid-market businesses often cannot. For them, getting ahead of the compliance curve is a must, especially now that the DOJ has withdrawn its long-awaited regulations on the matter. The lack of clarity means a near-certain uptick in the pace of forthcoming cases.
Could you be a target? In short, yes – any business with a website could end up in a plaintiff’s crosshairs.
So, what exactly needs fixing? One common failure is missing alternative tags. These are the lines of code required for assistive devices, known as screen readers, to read aloud to sight-impaired users the visual elements of a webpage. Another example is audio content, all of which must be properly captioned. And sites must accommodate hundreds of keyboard combinations – Ctrl + P to print, for example – that physically disabled persons depend on to navigate a site. Without protocols like these in place, you could exclude up to 20% of your site’s visitors. That represents a lot of revenue and reputational damage on social media.
Fortunately, smart businesses can front-run these threats in some simple ways. First, hire a qualified third-party auditor to scan your site and determine the scope of work to be done. This will establish an objective baseline. Second, avoid free online diagnostic tools, which only catch 20-30% of known failures at best. Companies that rely solely on free tools believe, incorrectly, that they meet the WCAG 2.0 standard. Human auditors must be used in the remediation process. Like most things in life, you get what you pay for.
For any questions about the ADA and this new frontier of ADA compliance, please contact Board Certified Labor and Employment Partner Ellen Leibovitch. ADA compliance professional Jeremy Horelick, Vice President of ADA Site Compliance contributed to this post.
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