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Website accessibility lawsuits (i.e., lawsuits alleging
discrimination on the basis that websites contain access barriers
that limit navigation for disabled people) increased 177% percent from 2017 to 2018
alone. These website accessibility lawsuits have been brought under
Title III of the Americans with Disabilities Act ("ADA"),
which prohibits discrimination on the basis of a disability
"in the full and equal enjoyment of the goods [and] services .
. . of any place of public accommodation." The Department of
Justice ("DOJ") has recently affirmed its position that
websites are places of public accommodation. On the litigation
front, there is a split of opinion among federal courts as to
whether a website alone (i.e., one not connected to a
brick-and-mortar store) is a place of public accommodation.
Notwithstanding the foregoing, regardless of where a company is
located, all entities with an online presence should build/review
their websites with an eye directed towards ADA compliance.
Why has the number of website accessibility lawsuits
increased so exponentially?
The ADA
The explosion of website accessibility lawsuits in recent years
can be largely attributed to: (1) the fact that the ADA was enacted
in 1990, at a time when "access barriers" were understood
to mean physical barriers to access and not "access
barriers" to website content; and (2) the lack of published
guidance from the DOJ.
In the offline/physical space, the ADA and DOJ provide very specific standards requiring
physical commercial locations to accommodate disabled individuals
beyond simply "equal access." However, because the DOJ
continues to abstain from providing specific compliance guidance
for websites, courts are left to interpret what "equal
access" means in the context of website accessibility
lawsuits.
Website accessibility lawsuits are typically brought on the
basis of unequal access, such as where a screen reader cannot read
text on a website. In the most extreme of cases, any minor website
coding error may be a violation of the ADA. For example, if a
website has an image that the alt-text (which is the HTML coding
describing the image) describes as a cat, but the image is actually
that of a dog—this may violate the ADA, it is argued, because
this results in unequal access (the sighted person can see the dog,
but the blind person only hears "cat").
Avoiding Website Accessibility Lawsuits
While we have seen lawsuits based on minor coding and/or
alt-text errors (i.e., image of "dog," but coded
"cat"), the majority of cases contain a bit more
substance (i.e., those that involve the checkout feature, problems
with the shopping cart, and overall navigation issues). While the
only sure-fire way to avoid a website accessibility lawsuit is to
have a fully-compliant website that conforms to the current version
of the Web Content Accessibility Guidelines
("WCAG")—a set of accessibility standards created
by the World Wide Web Consortium ("WC3"), at
a minimum all websites should:
include a skip to content feature at
the top of each page;
provide a 24/7 toll-free telephone
number (that can be read by screen readers) serviced by a live
customer service representative who can provide access to all
website information and functions; and
enable screen readers to read the
most important text relevant to the featured products/services and
allow users to buy (or subscribe to) those products/services.
Going Forward
In our experience of defending website accessibility lawsuits,
few of our clients were aware that their websites were inaccessible
to the disabled. Unfortunately, because the ADA is a strict
liability standard, ignorance of the law is not a recognized
defense.
Companies facing website accessibility lawsuits often have to
deal with negative press and unnecessary legal fees. Given the
substantial risk, it is imperative for companies to have
experienced website auditors and lawyers review their websites for
compliance.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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