DON’T GET SUED BECAUSE YOUR WEBSITE ISN’T ACCESSIBLE

Despite the lack of formal agency guidance regarding public accommodations’ obligations to make websites accessible to the deaf and blind, an active plaintiff’s bar hasn’t stayed enforcement activity under Title III of the Americans with Disabilities Act. The Justice Department released in July 2010 an advance notice of proposed rulemaking (75 Fed. Reg. 43,460) seeking public comment on website accessibility issues but has since delayed issuance of a proposed rule, now expected in April 2016.  

In the absence of legal standards defining “accessible website,” Minh N. Vu, Seyfarth Shaw partner and leader of the firm’s ADA Title III Specialty Practice Team, in a July interview with Bloomberg BNA addressed potential ADA compliance concerns of businesses with an online presence.

Bloomberg BNA: DOJ’s advance notice suggested that public accommodations websites that provide goods and services must be accessible to individuals with disabilities, unless the goods and services are available in some other equivalent manner. 

Can covered entities meet their ADA obligation to provide effective communication and to ensure equal access by providing an accessible alternative, or does DOJ now expect entities to make their web-based goods and services accessible?

Vu: I do think that businesses can comply with the current law and regulations by providing the goods and services that they provide on the web in some equivalent manner, though equivalency may be difficult to establish in some contexts. The issue hasn’t been litigated in the courts. In our experience handling these DOJ website investigations, the DOJ enforcement attorneys haven’t given much weight to these equivalent alternatives. What they want are websites and mobile applications that comply with Web Content Accessibility Guidelines (WCAG) 2.0 AA.   

Bloomberg BNA: DOJ filed June 25 statements of interest in two cases initiated by the National Association of the Deaf against Harvard University and the Massachusetts Institute of Technology (MIT)—actions challenging the universities’ failure to provide closed captions in free online programming to individuals who are deaf or hard of hearing. 

What insights do you glean from the agency’s statements? 

Vu: I actually wrote about this in my blog post. The most dramatic takeaway in these Statements of Interest is DOJ’s use of the word “pre-existing” to refer to the obligation of public accommodations to have accessible websites. That is a significant change in position, considering that in the 2010 Advance Notice of Proposed Rulemaking DOJ was asking for public comment about how much time businesses should have to come into compliance with whatever accessibility standard DOJ ultimately would adopt.

Bloomberg BNA: In order to mitigate litigation risk, what would you advise businesses that don’t currently have accessible websites or mobile applications to do?

Vu: Those businesses immediately should make sure that all of the goods, services and information available on their websites can be accessed via 24-7 phone service. They also should start working on making their websites and mobile applications conform for WCAG 2.0 AA.

Bloomberg BNA: In a Feb. 26 webinar presentation co-sponsored by Seyfarth Shaw and SSB BART Group, you discussed typical settlement terms of digital accessibility lawsuits. During that discussion, you stated that WCAG 2.0 Level AA conformance is the level private sector businesses are striving to achieve. 

Specifically, what do these guidelines call for?

Vu: There are too many requirements to restate here, but I’ll provide some examples. Non-decorative images must contain alternative text so screen readers will be able to identify them. Videos must have closed captioning for the deaf and audio descriptions of what is visually happening for the blind. The website has to be navigable with a keyboard instead of just a mouse. There has to be sufficient color contrast. Text sections need appropriate headers so the content is presented in a logical fashion by the screen reader.  

Bloomberg BNA: Can you estimate costs of adapting a website for individuals with vision and hearing impairments? 

Vu: It depends on the site, but it could range anywhere from six figures to more than a million.

Bloomberg BNA: What do recent settlements tell businesses about their responsibility (if any) to make third-party content accessible?

Vu: Third-party content is a real challenge, and it’s an issue we hope DOJ will tackle in the proposed and final regulations—if they ever issue them. DOJ is supposed to issue proposed rules for state and local government websites any day now so we will be looking at those to see what they say about third-party content. We recommend that businesses make a good faith effort to obtain accessible third-party content that also meets their requirements. If those efforts are unsuccessful, they should be documented.

Bloomberg BNA: Courts generally have held Title III covers websites of businesses with a brick and mortar presence. However, they disagree as to whether a brick and mortar presence is required for coverage. 

Considering that a proposed rule is expected in 2016 and that DOJ is saying firms have an existing obligation to make websites accessible, do you think the U.S. Supreme Court would take up the issue?

Vu: There is no court ruling, regulation or law that actually says public accommodations have an existing obligation to make their websites accessible. The ADA contains a non-discrimination mandate and a requirement that public accommodations provide auxiliary aids and services to make their goods and services accessible. Having an accessible website is certainly one way to do that, but it’s not the only way—at least as the law is written now. DOJ has shifted views on this issue and is now taking the position that having an accessible website is a pre-existing obligation.  DOJ’s position neither is in any regulation or law nor has been tested in the courts.

The Supreme Court may at some point take up the issue, but there isn’t a direct circuit conflict yet.  The Ninth Circuit is the only court of appeals to address whether a website has to have a nexus to a physical place of public accommodation in order to be covered by the ADA.  Lower courts in the First Circuit have held the opposite, but the First Circuit has yet to decide this issue as it relates to websites.

Bloomberg BNA: Given the unsettled state of the law, what pending Title III lawsuits are on your radar?

Vu: We are handling quite a few threatened and pending lawsuits at this time.

Bloomberg BNA: What are private employers’ obligations under Title I with respect to the accessibility of online application processes for applicants with disabilities?

Vu: The agency responsible for enforcing Title I of the ADA, the Equal Employment Opportunity Commission (EEOC), has said very little on this issue. However, at a minimum, private employers that don’t have accessible employment websites must ensure that there is an alternate way for candidates who can’t use the website to look and apply for jobs and that they engage in the interactive process to discuss what reasonable accommodation is required for each individual applicant.

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