This fall, the Department of Justice postponed its proceeding to adopt regulations on web accessibility for a few more years. The prolonged delay in those regulations has created a perfect storm for more litigation under the Americans with Disabilities Act (ADA). As a result, many companies should be adding web accessibility to their list of top priorities for 2016.
1. What is web accessibility?
People with disabilities are able to navigate the Internet using a variety of assistive technologies. Some people might need speech-recognition software, or others might need a screen reader to convert information provided on a website into speech. Still others might need closed captioning of information in videos or the ability to interact with a website without a mouse or touch screen.
Many commercial websites do not have the features necessary for assistive technologies to translate their content into a usable format or only provide a limited amount of accessible content. Making a website accessible means removing these technical barriers that limit the content available to people with disabilities or make it difficult for them to navigate the Internet.
2. What does the ADA require?
The Americans with Disabilities Act generally prohibits public accommodations from discriminating against individuals on the basis of disability. Under the ADA, public accommodations include things like hotels, restaurants, movie theaters, recreational facilities, banks and retail stores. The ADA gave the Department of Justice the power to adopt regulations to implement and enforce the law.
3. When will web-accessibility regulations be implemented?
The Department of Justice began a proceeding in 2010 to update its rules to include web-accessibility obligations. But the proceeding was delayed for several years and won’t resume until 2018. The Department of Justice maintains that all public accommodations must make their websites accessible under current law, even in the absence of specific regulations. It also takes the view that a purely web-based business is a public accommodation under the ADA if it fits into one of the categories listed in the statute.
This view is controversial. Courts have reached different conclusions on this, because the ADA became law 25 years ago -- well before widespread use of the Internet.
4. Why are lawsuits on the rise?
The ADA allows private parties to bring claims in court, and if they win the case, their attorneys’ fees are paid by the defendant. While the Department of Justice’s web accessibility proceeding remains on hold, more and more private plaintiffs are bringing these claims or at least threatening to do so. Companies often have incentives to settle quickly to avoid publicity. But that means that courts have not had the opportunity to rule on the merits of these cases or to articulate what standards, exceptions or limitations should apply in the absence of promulgated rules.
5. What can I do to protect my company?
The best way to protect your company from web-accessibility lawsuits and demands is to implement a plan to ensure that the core functions of your website will conform to internationally accepted guidelines (WCAG 2.0) within a reasonable time frame. Settling lawsuits will not protect your company from more lawsuits. Waiting for new regulations to be adopted may cost you more in the long run.
There are several things you can do in the short term. For example, you can incorporate provisions in your web-development contracts with vendors that give the vendor responsibility to conform to the prevailing standards. It costs a lot less to start with an accessible website than it does to remediate an inaccessible one. If you do your own web development, you can ensure that your employees get training from recognized web-accessibility experts. This increases the level of expertise within your organization and will help you prevent relapses as your website evolves.
You should also have an expert review your insurance coverage to see if it covers discrimination claims. And you should make sure you have a risk-management system in place to alert your insurers if a claim is made in accordance with the procedures and deadlines in the policies.