Congress passed the Americans with Disabilities Act (ADA) more than a quarter-century ago, but even today many smaller businesses struggle to meet the requirement that their “public accommodations” be available to those with disabilities.
Get ready to struggle even more.
You probably didn’t realize it, but the provisions of the ADA apply to commercial websites, too. And the government may soon implement rigorous guidelines that any business with an Internet presence will have to follow.
The Brick and Mortar Struggle
Before we discuss the application of the ADA to the net, it is important to understand many brick and mortar businesses have been struggling with the Americans with Disabilities Act for years. Companies must modify their facilities to meet the requirements of the Act when the changes are “readily achievable.” Despite this standard, businesses have been forced to shut down over the years. The problem is drive-by ADA lawsuits by “professional plaintiffs.” These individuals file flurries of ADA complaints looking for quick financial settlements.
The goals of the ADA are laudable, but implementation can be difficult. The costs that many small businesses incur in meeting the Act’s requirements are often a burden that’s tough to handle. Modifying an old mom-and-pop store to create wider aisles or a wheelchair-accessible bathroom stall ain’t cheap. Sometimes the cost is so high that ADA compliance effectively bankrupts a business.
a. ADA Enforcement
Enforcement is spotty as well. The federal government moves only rarely against companies. More often, it’s a private plaintiff who threatens to file a complaint leading the parties to negotiate a resolution. In most states, the “negotiations” can be nothing more than a veiled blackmail scheme run by our old friends, professional plaintiffs. Some states have legislated against such actions, but not enough. If a case does go to court, though, the first violation can carry a civil penalty of $55,000 in addition to compensatory damages and back pay if employees’ access is involved.
A company’s website would seem to be immune to these types of problems. After all, the customer faces no physical barrier to accessing the site. Ah – you’re underestimating the government. In truth, websites already have to be “accessible” to the disabled. And the issue may soon become much more complicated.
Websites and the ADA
The applicability of the ADA to websites has caused immense confusion over the years. Initially, legal commentators believed only physical locations had to adhere to the Act. After all, drafters of the law indicated it applied solely to a “place of public accommodation.” Makes sense, right?
Then the World Wide Web Consortium (W3C) developed the first set of Web Content Accessibility Guidelines (WCAG). The W3C sets policy for the World Wide Web and programming languages like HTML programmers use to create websites. The federal government didn’t adopt the guidelines, but they sparked interest among disabled advocates. Disabled plaintiff then asserted companies should follow the guidelines in some of the first website lawsuits brought asserting ADA claims.
Three of the first significant website access suits led to more confusion on whether the ADA applied to websites.
- In the 2002 Access Now, Inc. v. Southwest Airlines Co. decision, a federal district court ruled that the airline’s website was not a “place of public accommodation” and not subject to the Act.
- But in the 2006 National Federation of the Blind v. Target Corp. federal suit, the court held the ADA did apply to Target’s website because the site was essentially an extension of the company’s retail operations, which were “places of public accommodation.”
- But in 2010, Ouellette v. Viacom and Young v. Facebook reinforced the theory that websites were not subject to the provisions of the ADA because the sites didn’t replicate physical places of business.
The only conclusion we can derive from these cases is the ADA applies to websites if lawsuits are filed in particular jurisdictions while it doesn’t in other jurisdictions. The split in the courts invites forum shopping. Plaintiffs will avoid ADA-adverse jurisdictions.
a. New ADA Guidelines and DOJ Developments
Other factors were coming into play, however. W3C released updated WCAG 2.0 guidelines in 2008. In 2010, the Department of Justice took the stance that the Act did, in fact, apply to online operations. That’s when the DOJ announced that it would begin considering formal regulations to mandate specifics of website compliance required under the ADA. Public comments were solicited, with a notice of proposed rulemaking expected in 2013. That process has been delayed again and again, with no firm regulations adopted.
There were many signs that the DOJ remained serious. Those included a 2013 consent decree involving tax giant H&R Block, and a 2014 settlement agreement between Justice and Peapod, at the time America’s largest online grocery service. The government’s positions depended heavily on the WCAG 2.0 guidelines, and both H&R Block and Peapod agreed to adhere to those guidelines while installing massive new systems to test and ensure accessibility on the companies’ websites.
Confusing matters further is the fact that the WCAG guidelines also apparently govern accessibility for the new kid on the block, apps, even though the WCAG 2.0 guidelines don’t mention apps. Part of the Peapod settlement included accessibilities issues with the company’s app, but no parties have brought lawsuits focusing only on apps as of yet.
b. DOJ Fails…Again
In an attempt to end the confusion, the Department of Justice issued a statement in 2017 that it would release firm regulations on ADA website accessibility in 2018. However, that was in the final days of the Obama administration; an executive order signed by President Trump early in his administration makes it extremely difficult for the DOJ to release any new administrative regulations.
As of this writing, there are still no firm government guidelines, and the landscape remains unsettled. In 2017, a Florida court rejected a website ADA suit against SeaWorld and Busch Gardens citing the 2006 Target decision, while another Florida judge did the same thing in a case involving Winn Dixie – even though the Justice Department weighed in on the plaintiff’s side.
The smart move, though, is to prepare in advance for selective enforcement of the current mishmash of regulatory approaches and court decisions. That’s also the best defense against complaints brought by outside plaintiffs which could – at the very least – create significant headaches for businesses which depend on their website for revenue and profits. Putting aside legal considerations, complying with the WCAG 2.0 will assist disabled visitors and perhaps add to a company’s bottom line.
How should a company change its website (and its apps) in order to be protected, and to be ready when “firm guidelines” on ADA-related accessibility arrive sometime between 2018 and the Apocalypse? We’ll look at that next.
Website Compliance with the ADA
The starting point for anyone tasked with ensuring that a company’s website and apps are ADA-compliant should be to take some time to read the government’s “ADA Best Practices Toolkit.” It is not all-inclusive, but it gives essential guidance on how companies should approach the task.
Here’s a summary of common issues and suggested solutions discussed in the ADA Toolkit. You’ll notice that we’ve already briefly mentioned a few of them.
A. Text for the Visually-Impaired
The two tools most commonly used by the visually-impaired to read computer screens are screen readers (which decode text and read it aloud) and Braille displays (which decode text and then translate it into Braille). Neither is able to decode images, not even the text that might appear inside a picture.
The easiest way to make a page accessible under the ADA is to include text that describes every image, chart, graph, or logo. Smaller images, like photographs and logos, only need what’s called an “alt text” tag like “photo of former President Barack Obama,” “link to the homepage” or “click to order.” If a longer description is needed, a designer can use the “longdesc” tag instead. One can hide both tags in the coding of the page. While both screen readers and Braille displays can detect them, they aren’t actually visible on the page. Making a full-text version of every page available would be the admittedly difficult but ideal solution, although that’s virtually impossible when text is created dynamically (on the fly).
B. Allowing Visitors to Change Page Displays
Partially-sighted visitors are often unable to view web pages the way designers intend. They might see just a small portion of the page, the text may be too small for them to read, or they may not be able to view the colors used in a design. The problems are not uniform in nature; for instance, some may only be able to read text on a light-colored background while others can only read it when displayed on a dark background.
Those issues are easy for the visually-impaired to handle simply by changing the font sizes or colors displayed in their browser. However, it’s quite common for designers to specify the exact way a page will be shown, preventing visitors from changing the display of the page in their browser. ADA-compliant websites allow viewers the flexibility to see a web page in any way that works best for them. (It’s important to emphasize that this does not allow visitors to change what’s actually on the page – this simply lets them change browser settings on their computer or phone to alter the display.)
C. Making Website Documents Accessible
It’s become common for websites to post documents for download in PDF files, a now universal format for documents. Here’s the problem: PDF files are actually image-based, which means visitors using the assisted-reading devices we’ve mentioned, or those who need to change screen colors, won’t be able to read them.
To be fully ADA-compliant, documents should be available in text format even if they’re also downloadable as PDF files.
D. Availability of Forms and Menus
Modern website forms and shopping carts, complete with CAPTCHA boxes, are a real convenience for businesses looking to make online sales, capture leads, or encourage feedback. They’re a nightmare for the vision-impaired though, for reasons which I don’t have to detail – since you’ve been paying careful attention throughout this article. (You have, right?)
The ADA requires website owners to provide the same opportunities to all visitors, whether they’re disabled or not. In other words, you can’t just put a 24-hour phone number on your site as an alternative for those unable to complete an online form. If sighted people can fill out a form on your website, the visually-handicapped must be able to fill out a form as well.
Online businesses must make accommodations to give the disabled equal access to all site functions when designing or “retrofitting” websites. That could mean labeling checkboxes and buttons with appropriate HTML alt tags, making sure that keyboard entries are allowed on all forms and pages in lieu of mouse clicks, or simply redesigning a form so it functions equally well for all visitors. The same goes for website drop-down menus or other types of navigation bells-and-whistles.
E. Reformatting Video and Multimedia Presentations
We’ve already alluded to the fact that most of the video clips considered crucial for a modern website will be useless to those who are unable to hear their audio track. Similarly, it may be difficult or impossible for those with vision issues to watch videos if the person can resize clips or adjust the color and contrast in a browser.
Subtitles on videos can eliminate the first problem, and a text transcript of the audio track can help with the second. The ADA toolkit also suggests helping the visually-impaired by providing audio descriptions of what the videos show (they specifically mention changes in setting and gestures) – but good luck figuring that one out.
F. Other Website Issues
The toolkit provided by the government has a number of other suggestions for making a website ADA-compliant. They include:
- Placing a “skip navigation” link on every page to allow disabled visitors to quickly access actual content;
- Minimizing or eliminating distracting website features like flashing or blinking graphics;
- Providing a visual notification (along with a transcript) if audio plays automatically;
- Ensuring that all website coding includes the proper tags and structure to provide the visual cues we’ve discussed; and
- Creating a separate set of static web pages whenever the primary site makes use of dynamic, timed, or auto-refreshing content.
That’s A Lot of Work – Do I Really Have To Do It?
The government and private parties are focusing on commercial websites when asserting ADA claims at this time. The website you built to show your hobby results is unlikely to be on anyone’s radar.
For businesses and commercial establishments, however, there is at least some jeopardy. Perhaps the courts would agree your website doesn’t fall under the scope of the ADA if a claim arises. Even then, you will incur time and money defending yourself. On the other hand, you’re facing substantial fines and penalties if you lose a federal case, and attorney’s fees (at the very least) if you have to settle a privately-brought ADA case.
So, do you need to comply? For most businesses, it’s an extremely good idea. Compliance is a must if you have one or more retail locations in addition to a website.
A complete ADA compliance audit of all websites and apps is the first step. You will need an inventory of all of the challenges the disabled might face. After that, you’ll need to fix each item on the list. The ADA Best Practices Toolkit I mentioned earlier, as well as the WCAG 2.0 guidelines, provide invaluable guidance.
Needless to say, most businesses don’t have the personnel or expertise to perform those tasks easily. They’ll find that the best approach is to find a web design firm fully conversant in website accessibility to perform the audit and recommend the necessary changes.
Sooner or later the Department of Justice will finally adopt formal ADA regulations. Before that happens, there’s no telling when someone will decide to put you through the legal wringer. It makes sense to be proactive and make your site accessible to the disabled.
Richard A. Chapo
More Commentary, Tips, And [Potentially] Interesting Topics