Seyfarth Synopsis: The Department of Transportation says that an airline's provision of an accessible alternative website violates the Air Carrier Access Act (ACAA), so are such websites an acceptable means of providing access under the ADA?
In response to the onslaught of website accessibility lawsuits against public accommodations covered by Title III of the ADA, some website accessibility consulting companies have been promoting solutions that involve the use of an alternative version of a business' primary website that conforms to the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA). The alternative version is typically accessed through a link on the website and, unlike the bare bones "text-only" websites of the past, looks very much like the non-accessible website. While not cheap, this solution is appealing to many businesses because it requires no coding changes to the primary website, no substantial commitment of internal company resources because it is implemented by the third party consultant, and can be implemented fairly quickly to provide immediate access for users with disabilities.
In a recent consent order against airline SAS, the Department of Transportation (DOT) made clear that these alternative websites do not meet the Air Carrier Access Act ("ACAA") requirement that all airlines make all web pages on their primary websites accessible by December 12, 2016. The DOT said SAS violated the ACAA's website rules when it when it "created a separate Web site for individuals with disabilities instead of ensuring that its primary Web site met the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard." To avoid an enforcement action, SAS entered into a consent order which requires SAS to pay $100,000 in immediate penalties, and other $100,000 in penalties if it later violates the Consent Order.
The airline had engaged a well-known website accessibility consulting company to create an "assistive version" of its primary website which had a separate url from the airline's primary website url, and could be accessed from a link on the top right of the primary website homepage. The airline stated that it had in good faith employed this solution to meet the compliance deadline while it was building a new global primary website that would be (and is now) accessible. It also argued that it met the undue burden exception to the website rule, which, when met, allows use of an alternate conforming website. DOT responded that the ACAA permits air carriers to use a WCAG Level AA conforming alternate version only when conforming the primary web page to all WCAG 2.0 AA success criteria would constitute an undue burden or fundamentally alter the information or functionality provided by the primary webpage, and that SAS could not meet either exception. The DOT cited the ACAA's explanation for its prohibition on separate accessible websites, as "likely [to] perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the secondary site." However, the Consent Order did not state that the alternative website failed to comply with the WCAG 2.0 AA in any way. The DOT also rejected SAS's argument that it was only using the alternative website to meet the deadline while its entirely new accessible primary website was under development. We assume that SAS, like many other businesses, did not want to spend money remediating an old website that would soon be retired.
The DOT Consent Order raises the obvious question of whether an alternative accessible version of an inaccessible website can be used to provide access under Title III of the ADA. We do not think the DOT Consent Order is dispositive because, unlike the ACAA which explicitly says the primary websites of airline carriers must comply with WCAG 2.0 AA, the ADA does not specify any accessibility standard for public accommodations websites. In fact, the Department of Justice (DOJ) which is responsible for enforcing the ADA recently stated in a letter to Congress that "absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA's general requirements of nondiscrimination and effective communication." That said, the Consent Order certainly raises concerns about the use of alternative accessible websites, and public accommodations should carefully examine their options before signing up for this type of solution.
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