Americans with Disabilities Act & Online Business: Be compliant or risk a lawsuit or fine
The 1990 Americans with Disabilities Act (ADA) guaranteed that disabled people have a right of access to any public place. Until recently, the ADA has primarily concerned itself with physical access to government offices / agencies and businesses. Sidewalks now have “curb-cuts” so people using wheelchairs can easily cross the street. Elevators, ATM and voting machines now have Braille instructions.
In 1996, an opinion letter written by the US Justice Department stated: “Covered entities that use the Internet for communications regarding their programs, goods or services must be prepared to offer those communications through accessible means as well.”
In April 2016, a California Federal judge ruled that a retailer may be sued if its website is not accessible to the blind (Nat'l Fed'n of the Blind v. Target Corp. 2007 U.S. Dist. LEXIS 30513). This means that any online business that offers products on its website falls under the ADA. This ruling highlights the risk for lawsuits against retailers or online businesses with websites that are not accessible to the disabled.
What modifications might be necessary?
Unlike the ADA requirements for physical buildings, which are clearly described and documented, ADA website compliance and what the standards should be for testing ADA compliance have not yet been defined by law.
What does it mean to be web accessible? Take the case of a blind person. S/he can navigate the web with the help of a screen reader, a program that reads the text of a web page and converts it into a format that blind users can understand, such as audio or Braille. Screen readers can also identify links and graphics to help users navigate using a keyboard, instead of a mouse. In order for a screen reader to work on a given website, though, the site must use code that is comprehensive to screen readers.
According to W3C’s website, accessibility overlaps with other best practices such as mobile web design, device independence, multi-modal interaction, usability, design for older users, and search engine optimization (SEO)”.
The W3C Web Accessibility Initiative (W3C) has developed a proposed set of standards called the Web Content Accessibility Guidelines (WCAG 2.0) –W3.org Appendix B: Checklist (Non-Normative). According to W3C, here are a few of the things you need to look for in determining whether your website is ADA compliant:
Non-text content that presents information or responds to user input must be available in a text alternative
Multimedia such as live audio or video streaming, a test or exercise must have a text alternative and be presented in the form of a label at a minimum
Captions need to be provided for any media that is prerecorded
Audio descriptions of video or a full multimedia text alternative such as a transcript needs to be provided for recorded video
Sign language should be provided for live multimedia
Content on a site should not blink for more than 3 seconds
Each link should have text describing the purpose of the link
All images on a page must have an “alt tag” with descriptive text
If all of this seems like computer jargon to you, talk to your web developers who can help you navigate through this potential minefield.
The W3C website published a series of case histories to highlight the difficulties people with disabilities encounter on the web. Here’s one: “Ms. Laitenen is the chief accountant at an insurance company that uses web-based documents and forms over a corporate intranet. She is blind and, like many other blind computer users, does not read Braille. To use her computer and the Internet, she needs screen reader software that interprets what is displayed on the screen and generates speech output as well as an Internet browser with keyboard support to help use the Internet without a mouse”.
According to W3C’s website, “accessibility overlaps with other best practices such as mobile web design, device independence, multi-modal interaction, usability, design for older users, and search engine optimization (SEO)”. The website also talks about how “accessible websites have better search results, reduced maintenance costs and increased audience reach”.
If you have a public website that is not ADA compliant, you risk two actions:
Criminal Actions – Disabled people can report illegal websites to the Department of Justice (DOJ). The DOJ can authorize a $50,000 fine for the first offense
Civil Litigation – Disabled advocates have a long history of lawsuits against inaccessible public places and multi-million dollar judgments are not uncommon.
Some companies are simply not aware of the ADA requirements for commercial website. Others, who are aware, worry about the costs of modifying their websites. With these types of cases on the rise, more suits will be threatened. While compliance is not yet legally mandated, most companies think it makes good business sense to make their websites accessible to the disabled.
About the Author
Julie Marvel is an Underwriting Manager in XL Catlin’s Private Commercial business. She keeps our clients informed about the emerging issues and regulations influencing employment practices litigations. XL Catlin Private Commercial unit offers a broad suite of management liability coverages, including EPLI and D&O tailored for small and mid-size private companies.