In 2015, there have been more than 40 web accessibility lawsuits filed against American businesses under the Americans with Disabilities Act, according to an article (PDF) published in Bloomberg’s Electronic Commerce and Law Report in November 2015.
Clear Need for Website Accessibility
There is a clear need to make websites accessible to visitors with disabilities, and the U.S. Department of Justice has done an eloquent job of describing that need.
Today the Internet, most notably the sites on the web, plays a critical role in the daily personal, professional, and business life of most Americans. Increasingly, private entities of all types are providing goods and services to the public through websites that operate as places of public accommodation under title III of the ADA [Americans with Disabilities Act]. Many websites of public accommodations, however, render use by individuals with disabilities difficult or impossible due to barriers posed by websites designed without accessible features.
Again according to the U.S. Department of Justice, not being able to access a website, or having difficulty accessing a website, impacts Americans with disabilities, putting these folks “at a great disadvantage in today’s society, which is driven by a global marketplace and unprecedented access to information.”
The Department of Justice even explicitly addresses ecommerce. “On the economic front, electronic commerce…often offers consumers a wider selection and lower prices than traditional ‘brick-and-mortar’ storefronts, with the added convenience of not having to leave one’s home to obtain goods and services.”
The Department of Justice’s statement makes good sense, and most businesses want to service disabled customers online. From an ethical or good business perspective, there is no question the web should be accessible for all. Every business should develop a strategy for web accessibility.
There can, however, be a challenge defining what it means for a website to be accessible. How, for example, does a business know if its site is, in fact, meeting a legal or practical definition of accessibility?
Regulatory Gap Fuels Litigation
In spite of publishing an Advanced Notice of Rulemaking in 2010 (PDF) stating that it would release regulations around web accessibility and the ADA Title III, the U.S. Department of Justice has not given businesses, including online retailers, clear instructions about what should be done to comply with the ADA. What’s more, the U.S. Department of Justice may take until 2018 to actually release regulations that businesses can follow.
Without clear U.S. Department of Justice guidance, state and federal courts can and do release conflicting decisions about what businesses should do to make websites accessible in compliance with the ADA and its Title III. These courts could also set the bar, if you will, for web accessibility and ADA Title III compliance as high as they like.
This lack of instruction means — as an extreme example — it is possible that even online businesses which have followed every best practice and built a website that complies with every guideline from third-party organizations like the World Wide Web Consortium might still be sued or forced to pay plaintiffs’ damages. There simply is not a functional definition of ADA web accessibility compliance.
“Disabilities law experts say that the lack of regulations governing website accessibility have encouraged these lawsuits and put businesses in a quandary over what, if anything, they should be doing to mitigate legal risks in this area,” wrote the author of the aforementioned Electronic Commerce and Law Report article.
To make matters even worse, according to attorney and ADA law expert Minh N. Vu, the U.S. Department of Justice sends mixed signals about whether or not websites really needed to be accessible if accommodations were made.
Going back to 2010, the Department of Justice “made a number of statements that reasonably led public accommodations to conclude that their websites did not necessarily have to be accessible as long as the public accommodation offered an equivalent alternative way to access the goods and services that were provided on the website. The DOJ’s statements also led public accommodations to believe that once DOJ issues a final regulation, they would have time to make their websites comply with the technical accessibility standard DOJ adopts in that regulation,” Vu wrote in a July 2015 article.
According to Vu, the Department of Justice “stated that ‘covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.’”
… the U.S. Department of Justice sends mixed signals about whether or not websites really needed to be accessible if accommodations were made.
More recently, however, the Department of Justice, according to Vu, has said that a requirement for an accessible website exists right now and that a 24-hour telephone service would not satisfy the ADA requirement.
This situation means that businesses should, on the one hand, develop a web accessibility strategy, which is ultimately good for customers with disabilities. But those businesses — except for the very smallest businesses, which are exempt from ADA compliance — should also understand that in spite of taking steps toward accommodation, it is still possible to be sued and lose.