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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:

  • Individuals may bring a private cause of action to obtain injunctive relief requiring a business to make its website accessible to the disabled; and 
  • The DOJ may bring a lawsuit to obtain monetary damages and/or equitable relief. In addition to paying to have its website accessible (which could be tens to hundreds of thousands of dollars), private businesses may be exposed to paying the attorney’s fees and/or civil penalties and fines. 


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.”

How Does WCAG Affect Your Business?

 

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.

What If My Business Is the Target of a Lawsuit?

 

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.

WCAG Action Steps

 

  1. Ascertain your level of WCAG compliance.  Review any existing contract(s) with website or mobile application developers to see what, if any, steps already have been taken to make your website(s) and/or mobile application(s) accessible. Consulting a Stein Sperling attorney for this review will help to ensure these contract provisions are enforceable as written.
  2. Speak with your developer(s) to see if he or she is familiar with WCAG 2.0 and the issues of access under the ADA.
  3. Evaluate the current accessibility of your website(s) or mobile application(s) and determine whether to engage a third party to modify or redevelop the site.  
  4. When engaging a new web or mobile application developer, consult a Stein Sperling attorney to help ensure that any contract properly addresses the developer’s obligation to attain and maintain WCAG compliance and that such provisions are enforceable. 


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