As of 2020, no law states that websites must be ADA Compliant, however, people are still getting sued for not having an ADA Compliant site. All modern WordPress websites we develop for our lawyers are accessible and easy to navigate for people, search engines and for people with disabilities.
The ADA was passed before websites existed.
Both Public and Private Websites Are Under Scrutiny
As per the U.S. Centers for Disease Control and Prevention, about 3.4 million, or 3% of the American population aged 40 years or older are at least legally blind. Lawsuits involving the accessibility of the internet for blind people were rare, but as a result of recent court decisions, they began rapidly proliferating. According to the Detroit Free Press, a respected international law firm that has been tracking ADA website accessibility for the blind estimated that in 2015, 57 website accessibility lawsuits were filed. In 2017, 817 were filed for the blind. The law firm’s conservative estimate for the 2018 year is that 2,158 of website accessibility lawsuits were filed for the blind. The outlook for website owners isn’t very good either for 2019. It isn’t just commercial websites that are being targeted. Government websites have also been put under the ADA microscope.
There’s No Improvement Waiting Around the Corner
Don’t expect the ADA website lawsuits to decrease in the next two years either. They’re only expected to continue to increase. That’s because the U.S. Department of Justice has failed to publish any guidelines on website accessibility. What also comes to issue is that without any of such guidelines, website owners, including law firms and attorneys, will continually face allegations of simply not doing enough to stay on top both existing and forthcoming technology.
What is Accessibility?
In 2016, a lawsuit was filed in a California federal court against Domino’s Pizza. The blind plaintiff alleged that Domino’s violated the ADA because the website wasn’t compatible with the reader on his iPhone, and he was unable to order a pizza for delivery. His lawsuit alleged that “unless websites and mobile apps are designed to be read by screen-reading software, blind and visually impaired personas are unable to fully access websites or mobile apps, and the information, products and services contained thereon.” In dismissing the case, the lower court stated that the U.S. Department of Justice had yet to offer any guidelines involving website accessibility.
Reversed and Remanded
On appeal, a panel of three judges from U.S. Court of Appeals for the Ninth Circuit reversed the lower court’s ruling. It held that the ADA “mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind.” On that appellate court decision, the business premises was extended from Domino’s business premises to the putative customer’s home. The court’s rationale was that the ADA applies to “the services of a public accommodation, not services of a place of public accommodation.” What would a place of public accommodation be? That would be any business that is open to the public, including a law firm.
Inconsistent Results
Some blind plaintiffs and their lawyers have seen ADA website compliance as fertile legal ground for settlement income. One blind man sued 50 universities and alleged ADA noncompliance. More than 70 art galleries in and around New York City have also been sued under the same legal theory. One Philadelphia man has targeted more than 30 drinking and eating establishments. The law firm representing him and another man has filed more than 100 ADA accessibility lawsuits on behalf of them. Without any guidelines or regulations involving accommodations for websites, state and federal courts across the country have been tasked to address ADA website lawsuits. The result has been a patchwork collection of varying and often inconsistent rulings without any consistent pattern.
The H&R Block Case
No rule was in place in 2014, when an ADA compliance case involved the tax preparation firm of H&R Block. Two blind plaintiffs alleged that the company was required to code its website to make it accessible to people with visual, hearing and physical disabilities. H&R Block settled with the U.S. Department of Justice through a consent decree. The company agreed to pay $22,500 each to the two individual plaintiffs along with a $55,000 civil penalty while also agreeing to remediate its website for the disabled.
Winn-Dixie
The first website accessibility case to go to trial was against Winn-Dixie. It was brought by a blind man who was the plaintiff in 67 other website cases. Although the man wasn’t awarded any damages, Winn-Dixie set aside $250,000 to make its website more accessible to the handicapped. A total of $100,000 in legal fees was awarded to the plaintiff’s attorneys along with more than $5,000 in court costs.
WCAG 2.0 AA
As no official guidelines were in place during the course of either of the above cases, both judges apparently relied on the standards proposed by the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA) as their unofficial guidelines. Many enforcement actions have now been brought by the U.S. Department of Justice using the WCAG 2.0 AA as the standard for website ADA compliance. These guidelines consist of four categories with 12 guidelines. The categories follow:
- Perceivable: Information and interface components should be presented to users in ways that they can consciously understand.
- Operable: Interface components and website navigation must be able to be used.
- Understandable: Information and operation of user interface must be reasonable and understandable.
- Robust: Content must have sufficient strength and clarity so that it can be reliably interpreted by assistive technology hardware that might help people with disabilities fully explore your law firm’s website.
The guidelines can be found at WCAG 2.0 was updated in 2018 with WCAG 2.1. Updates can be found at https://www.w3.org/TR/WCAG21/.
Don’t Expect any Government Guidelines Soon
The Trump administration’s current policy appears to indicate that no formal guidelines will be implemented during this presidential term. On that basis, compliance with WCAG 2.0 AA and WCAG 2.1 should be considered to be the de facto ADA website compliance standard, especially in light of litigation and settlements after the H&R Block case. As WCAG 2.1 gains more traction, it’s highly likely that by default, it will become the new ADA website compliance standard.
Technological accessibility includes but isn’t limited to people with disabilities who use mobile, laptop and desktop technology. It’s a right that is protected by the ADA. Lawyers and law firms must develop an awareness of the fact that technology that isn’t accessible denies disabled individual information, services, participation. Participation includes equal employment. That awareness shouldn’t be solely focused on web site users. It should also address the needs of a law firm’s employees.
