Websites Could Be Next Disability Law Litigation Hot Spot

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By Genevieve Douglas

Having a website that’s inaccessible to individuals with disabilities could put an employer at risk of claims of disability discrimination.

The likelihood of a claim of disability discrimination based on a company website is increasing because organizations routinely use websites as part of the function of doing business, Kelly Lyon Davis, a partner with Quarles & Brady LLC in Naples, Fla., told Bloomberg BNA Oct. 5. “Human resources is often the gatekeeper for these types of issues because they deal with employee requests for accommodation,” Davis said, but website accessibility issues go beyond HR into customer services and IT.

Employers and companies “are facing a cottage industry of plaintiffs’ demands” where companies receive letters stating their websites violate the Americans with Disabilities Act and they’re threatened with class action lawsuits unless they agree to a settlement, Pamela Ploor, a partner in Quarles & Brady’s Milwaukee office, told Bloomberg BNA Oct. 5.

Disability bias litigation under the ADA has continued to increase over the past few years, Davis added. In 2014 disability discrimination accounted for 28.6 percent of charges filed with the Equal Employment Opportunity Commission, and in 2015 and 2016 that percentage rose to 30.2 percent and 30.7 percent, respectively.

Complicating matters, the Trump administration has indicated it won’t be issuing regulations on website accessibility, “so companies have found themselves in a complicated position,” Ploor said. Examples of disabilities that could need an accommodation or could have access issues with a website include mental cognitive disabilities, mobile impairments such as arthritis, visual impairments, and hearing impairments, Ploor said. “This is quite a large challenge,” she added.

An example of changes that would make websites more accessible include providing text alternatives for any non-text content so that such content can be changed into other forms, such as large print, braille, speech, symbols, or simpler language, according to web content accessibility guidelines. Other changes could include creating content that can be presented in different ways without losing information or structure and making it easier for users to see and hear content, such as by separating foreground from background.

Access for All

This issue needs to be addressed for both employees of an organization and the customers or public it serves, Davis said.

For employees who have disabilities, individual accommodations can be made to monitors or computer setups, depending on what a specific worker needs, Terri Rhodes, chief executive officer of the Disability Management Employer Coalition, told Bloomberg BNA Oct. 10. From a public access standpoint, however, there is an even greater responsibility to get this right, Rhodes said.

When it comes to employees, Rhodes recommended HR start by asking workers first what they need for accommodations. The best solutions often come from employees themselves “because they know what works,” she said. Additionally, HR should work on a case-by-case basis and not attempt to find an online access solution that works for everyone, Rhodes said. “If they’ve been in the workforce, they know what works and what doesn’t work,” she said.

For public facing sites, HR should use the web content accessibility guidelines as a starting point, Davis said. These standards aren’t government regulations, she noted, but they have been adopted for government entities. Web accessibility consultants are also a good resource for employers that would like to do an audit of their website and identify potential problems and solutions, Davis said.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bna.com

To contact the editors responsible for this story: Terence Hyland at thyland@bna.com

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