Nearly 5,000 ADA lawsuits were filed in federal court for alleged website violations in the first six months of 2018, according to a law firm that specializes in defending such cases.
Title III of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability in places of public accommodation and exempts application only to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entities controlled by religious organizations. Title III does not directly address whether places of public accommodation include websites. However, the Department of Justice (DOJ) has taken the position that Title III applies to all public-facing websites used by companies that otherwise qualify as places of public accommodation.
When the ADA was enacted in 1990, far fewer people used the internet and discrimination based on disability mostly occurred in person. Title III provides the standards required for businesses’ physical locations to properly accommodate disabled individuals. However, Title III does not provide any regulatory guidance for the internet, websites, or mobile applications.
Companies must also consider case law when analyzing ADA website accessibility compliance. Without explicit DOJ statutory guidance, there has been:
The rise of litigation and uncertainty surrounding the applicability of the ADA to websites should prompt companies to take preemptive steps to protect against liability by adopting practices that ensure their websites are accessible to disabled persons. The courts have relied on WCAG 2.0 and the DOJ has relied more specifically on WCAG 2.0, AA Conformance for determining whether a website violates Title III and as the requirements for a discriminating website to become Title III compliant.
Both the courts and DOJ have relied on WCAG 2.0 for determining whether a website violates Title III. Companies in pursuit of WCAG 2.0 AA conformance should first follow WCAG 2.0 requirements for Level A conformance, by:
In addition to following WCAG 2.0 requirements for Level A conformance, a company should follow WCAG 2.0 requirements for Level AA conformance, by:
On June 5, 2018, the W3C published WCAG 2.1, which updates some of the existing WCAG 2.0 conformance requirements, and is intended to provide a better overall web experience.
Individual states have also enacted laws banning discrimination. In California, it’s the Unruh Civil Rights Act (which requires business establishments to provide “full and equal accommodations advantages, facilities, privileges, or services”); New York has a New York State Human Rights Law. Like other states across the country, both California’s Fair Employment and Housing Act (FEHA) and the Minnesota Human Rights Act (MHRA) prohibit discrimination based on disability in the employment context, including against job applicants. Therefore, companies with online job applications should additionally make sure that any online job application is accessible to disabled individuals. All companies are encouraged to work with their web developers to ensure their websites meet the WCAG 2.0 Level AA and WCAG 2.1 Level AA standards. Companies should also consider incorporating a website accessibility statement on the website and referring disabled individuals to alternate forms of communication to obtain information on the website, such as telephonic access.