What? Well, the United States Department of Justice in its infinite wisdom is getting ready to mandate “accessibility” of websites under the Americans with Disabilities Act (ADA). In advance of the issuance of formal regulations the word in legal circles is the Department is presently using ADA settlements to impose its views of accessibility on the businesses it sues as it did in a settlement agreement with edX Inc., a provider of online courses, in April 2015. The settlement resolved “allegations that edX’s website … w[as] not fully accessible to individuals with disabilities … in violation of Title III of the ADA.”
The proposed amendments to the ADA, expected to be issued by April 2016, “require public entities and public accommodations that provide products or services to the public through websites on the Internet to make their sites accessible to and usable by individuals with disabilities.” These changes would require websites to be accessible across a variety of ADA-covered disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities and photosensitivity.
The present WCAG 2.0 [the Web Content Accessibility Guidelines] provide 206 options to make a website “accessible” including, but not limited to providing links to definitions, removing time limits for activities, providing spoken word versions of text, and ensuring keyboard control for all website functions. However, the choice of one of the 206 options may not result in compliance with the amendments. As one law commentator has observed: Just because you’ve arranged to “provide spoken word versions of text” to fend off a lawsuit on behalf of blind users doesn’t mean you can get out of a lawsuit
representing persons lacking fine hand motor control for not “ensuring keyboard control for all website functions” (i.e., disabling any mouse-only functions and patching any failures this generates in your current design). And even if you can do both those things along with fifty more, you may still be
exposed to a lawsuit if you haven’t gotten around to “removing time limits for activities.”
How can a business protect itself from a website ADA claim? It will not be easy. However, at a minimum, website owners and managers should consider taking the following actions:
- Review WCAG 2.0 with legal counsel and/or your IT person to understand what is potentially needed to make your websites accessible across a variety of ADA-covered disabilities;
- Discuss with legal counsel and your IT person how to mirror the terms set forth in recent DOJ ADA settlement agreements such as those in the edX Inc. agreement; and
- Consider hiring a third-party consultant to conduct a thorough website audit to determine what changes may be needed and to develop a plan for implementing necessary updates.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
