By: E. Andrew Cole
Related Attorney(s): Millard S. Bennett, Alexia Kent McClure, Jeffrey M. Schwaber, Donald N. Sperling, Paul T. Stein, David C. Driscoll, Jr., Mary Craine Lombardo , Deanna L. Peters, Judith G. Cornwell, Eduardo S. Garcia, Elizabeth J. McInturff
Media Type: Alert
In today’s digital climate, maintaining a website is critical to servicing your existing clients or customers and essential to attracting new clients or customers. Most private businesses that provide goods and services to the public are required under the Americans with Disabilities Act (ADA) to make their websites accessible to the disabled. Even though the ADA was implemented before the Internet and websites became central to the economy, the Department of Justice (DOJ) contends that private sector websites must comply with the ADA and be accessible to the disabled.
Title III of the ADA provides that “[n]o individual shall be discriminated against 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 by any person who owns, leases or operates a place of public accommodation.” 42 U.S.C. § 12182. Title III of the ADA is enforced in two primary ways:
Unfortunately for private businesses, the DOJ has yet to issue regulations regarding specific Internet accessibility obligations of private sector websites under the ADA. In fact, the DOJ recently stated that it would not issue any such regulations until 2018. In other words, private businesses have no government standard by which to ensure that their websites are ADA accessible and compliant. This has not stopped disabled-rights advocacy groups, private plaintiffs or the DOJ from commencing investigations, prosecuting lawsuits and filing enforcement actions against private businesses to make their websites accessible to the disabled.
While the DOJ has said it will not issue regulations for some time, the agency, through its intervention in existing civil cases as well as through its enforcement actions, has demonstrated a preference that websites achieve Level AA standards of the Web Content Accessibility Guidelines (aka. WCAG) 2.0, which are published by the World Wide Web Consortium (W3C). W3C is an international community where member organizations, a full-time staff and the public work together to develop standards for the Internet. W3C published WCAG 2.0 in December 2008.
WCAG 2.0 defines how to make web content more accessible to people with disabilities. Accessibility involves a broad range of disabilities including, but not limited to, visual, auditory, physical, speech, cognitive, language, learning and neurological disability. WCAG 2.0 consists of 12 guidelines that are organized under four principles (i.e., websites must be perceivable, operable, understandable and robust). The DOJ described WCAG 2.0 as “industry guidelines for making Web content accessible to users with disabilities.”
Private businesses should not wait for the DOJ to issue formal regulations before making their websites (and mobile applications) accessible. Instead, they should proactively take steps to make their websites accessible now to reduce exposure and demonstrate to prospective plaintiffs and the DOJ that they are actively working to address accessibility issues. The DOJ does not view the absence of formal regulations as an impediment for website accessibility now.
The lack of formal regulation from the DOJ is not preventing prospective plaintiffs from targeting businesses and pressuring them with threatening demand letters and/or litigation. Nothing suggests this activity will decrease in the future while the DOJ waits to issue formal guidance. Litigation is time consuming and expensive and these entrepreneurial plaintiffs also seek recovery of the attorney’s fees they incur in these matters. If you receive a letter from a lawyer, or the DOJ, regarding your website, do not ignore it. Contact Stein Sperling for guidance on how to address and resolve the matter as quickly as possible.
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