By Brett Manchel
Today, ambitious plaintiffs’ attorneys are being retained by disabled clients who navigate to websites of local businesses and test them out to see if they are accessible via screen reading technology. Screen readers are one of the main ways legally blind people use the internet. Screen-readers can only work if they can comprehend the content on your website. When they run into errors, the attorneys send a demand letter or file a lawsuit for violations of the Americans with Disabilities Act (“ADA”). Being named in a lawsuit, usually filed in federal court, is often an expensive and frustrating surprise for business owners who would eagerly accept a phone call or letter informing them their website does not work well with a screen reader, and they would gladly update the website. Instead, a massive number of lawsuits are filed seeking damages under state-law civil rights statutes and attorneys’ fees. To me, this takes advantage of disabled consumers and puts unnecessary burdens on small business owners and the courts.
Of course, as more people turn to e-commerce, it is not wrong for the ADA requirements to make their way in cyberspace. The best course of action to comply with the ADA is to design websites with accessibility in mind at the beginning, and not as an afterthought. Just as the “privacy by design” concept has become the new normal for protecting the privacy and security of sensitive data, “accessibility by design” is similarly important. With advancing technology, coding accessibility into websites is cheaper and more effective than ever before. And, if you already have a well-established site, adding ADA-compliant content is a chance for you to release an updated or renewed site, which could also be part of a larger marketing strategy.
The challenge, though, is that the ADA does not provide a bright-line rule for website compliance. So, courts across the country have reached different conclusions for what is compliant and what coming into compliance means. Web design standards are set by the World Wide Web Consortium (W3C). The W3C, through its Web Accessibility Initiative, has propounded the Web Content Accessibility Guidelines, or WCAG. The most recent version of the WCAG is version 2.1. Additionally, the WCAG may be complied with at various levels, called A, AA, and AAA. Generally, if your website meets at least the WCAG 2.0 at Level AA, the website would provide at least enough accessibility to satisfy the ADA.
In New York, for example, courts have found that meeting the WCAG 2.0 Level AA guidelines specifically satisfies the ADA. And, even if you are sued before your site is compliant, by making it compliant, you might be able to get the lawsuit dismissed. In California, on the other hand, courts have not adopted the WCAG 2.0 Level AA standards as per se compliant but have suggested that meeting the standard could render a website in compliance.
The increasing number of court cases challenging ADA compliance online, as well as the varying rulings mean that Congress or the US Supreme Court is likely going to take up the issue soon and hopefully provide national standards for ADA compliance for websites of public accommodations. To meet or perhaps exceed compliance, we have recommended clients work with a web developer, and consider the accessiBe plugin, available at www.accessiBe.com, which bills itself as able to bring websites into WCAG 2.1 Level AA conformance.