Is Your Website Accessible?
2016 Issue 2 | GearedUp
In the 26 years since the Americans with Disabilities Act( ADA) became law, business owners have been required to make sure their buildings and public spaces were accessible to those with disabilities. This has resulted in the installation of wheelchair ramps, grab bars in restrooms, lowered counters and other physical changes. As many businesses are learning, however, the requirements do not end there. Instead, they are getting hit with enforcement actions by the government and private individuals on claims that their websites are not accessible to those with disabilities.
In this instance,“ accessible” does equate to how easy it is to find your website, although hopefully it is. Instead,“ accessibility” relates to whether people with disabilities can use the website. More specifically, accessible in this instance means that people with disabilities can perceive, understand, navigate and interact with the website. It encompasses all disabilities that affect access to the web, including vision and hearing impairments, physical difficulty using keyboards or pointers such as a mouse, cognitive and neurological disabilities, and so forth.
Background
When the ADA was enacted in 1990, no one was thinking about how it would apply to internet websites … probably because most people at the time had never heard of such things nor had any idea that 26 years later most individuals in the United States would get much of their information on the internet or make transaction online. Now that things have changed, however, the federal Department of Justice( DOJ) and others are applying the ADA to websites, and some courts are going along.
Title III of the ADA requires businesses to make their services accessible to those with disabilities. Until relatively recently, it was assumed that so long as there were alternative ways for individuals to obtain services provided on the internet, including hours the business is open, location, job applications, and other information and services from a business that had a website inaccessible to those with disabilities, then they were in compliance with the law.( Think of it as taking the position that so long as there was an accessible route from the parking lot to the entrance, it did not matter that there were other entrances that were not accessible.) In fact, in 2010, the DOJ apparently agreed with this principle when it officially stated that businesses with inaccessible websites may comply with the ADA’ s requirement for access by Douglas H. Duerr 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.( Federal Register, September 2010)
That Was Then, This Is Now
More recently, however, with the mere passage of a couple of years, the DOJ has taken a different stance. In June 2015, for example, the DOJ submitted briefs in support of litigation brought by the National Association for the Deaf, in which the DOJ asserted that websites had a pre-existing obligation under the ADA to be accessible … now. This position is consistent with enforcement actions the DOJ has brought successfully against companies such as Target, H & R Block, Wells Fargo, Peapod and others. That these companies provided alternative measures for obtaining information or otherwise interacting with their web-based services did not deter the DOJ.
Because the DOJ has a practice over the last few years of bringing enforcement actions and supporting private parties in litigation, you might think the DOJ has provided clear guidance on what it would take for a website to be lawful under the ADA. Unfortunately, that would not be accurate. Instead, not only has the DOJ not released any regulations, it recently announced in the fall of 2015 that it will likely be 2018 before it does. That is, the DOJ is going to pursue claims that websites are inaccessible but, unlike in the case of physical structures, there is no official guidance as to what standards the website will be measured. So what are you to do now, and, frankly, what does an accessible website look like?
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