Does Your Company Website Comply with Title III of the ADA?

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Is your website covered by the Americans with Disabilities Act? The short answer is: possibly. This area of the law continues to evolve, with differences from jurisdiction to jurisdiction based on the type of website. But make no mistake: lawsuits alleging lack of website accessibility are hot. Here are the basics of what you need to know to assess whether your website is covered and, if so, what you should do about it.

Title III of the ADA prohibits places of public accommodation from discriminating on the basis of disability. It was enacted in 1991, well before the internet became an engine of commerce. Its regulations do not address websites, mobile apps or similar technology. In 2010, the Department of Justice (DOJ) announced that it intended to promulgate specific requirements for website accessibility under Title III, but no regulation was ever finalized. Under the Obama Administration, the DOJ advocated to expand Title III to expressly apply to websites. For instance, in 2014, the DOJ submitted a Statement of Interest in New v. Lucky Brand, arguing that public accommodations must provide equipment (in that case point of sale devices) that could be independently used by visually impaired customers. But in July 2017, the DOJ under the Trump Administration filed an amicus brief asserting a contrary position: that public accommodations could comply with Title III simply by providing employee assistance to use vending machines rather than having to provide equipment that would make the machines independently accessible to disabled customers. In December 2017, the DOJ officially withdrew its 2010 proposed rulemaking, stating that the DOJ is “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.”

A Typical Website Accessibility Lawsuit

The most common allegation is that the company website is inaccessible to visually-impaired customers (some cases now involve mobile apps). Such customers often rely on screen-reader software like JAWS or NVDA to interact with and access a site’s content. If the website is not compatible with this or similar screen-reader technology, most visually-impaired customers will not be able to use the website.

Companies seeking to navigate these issues should start by addressing two basic questions: (1) Does your website engage in commercial activity for the benefit of the general public; and if so (2) Will the law treat your website as a public accommodation, or as the service of a public accommodation?

Websites That Engage in Commercial Activity

The first step is to review your company websites for commercial activity. Title III of the ADA applies to 12 specified categories of “places of public accommodation.” The examples given for each category are all brick-and-mortar locations, reflecting the fact that the ADA was enacted before the widespread commercial use of the internet. “Sales” and “service” establishments are the two categories most likely to apply to websites.

At present, a company website that is purely informational or educational in nature is likely beyond Title III’s accessibility requirements. But a website that sells goods or services directly to the public may be regarded either as a sales or service establishment in its own right, or as a service of such an establishment, and thus covered by the ADA or comparable state laws. Even a website that does not actually sell any goods or services but engages in some form of commercial activity may still be subject to the ADA or a comparable state law if it facilitates sales. The law has yet to define the limits of such commercial activity, but courts have ruled that a company website cannot deny disabled customers the full and equal enjoyment of services like online coupons, member savings and loyalty programs, store locators, and the ability to order items online for pick up at a physical location. Other commercial activity, such as advertising, online sweepstakes, or links to third-party sales websites may also increase the risk that a website must comply with the ADA.

The State of the Law Governing Website Accessibility

Once you have determined your website engages in sufficient commercial activity, you should find out if any courts in your jurisdiction have weighed in on website accessibility issues. The Ninth Circuit is the only federal appellate court to expressly address whether websites are subject to Title III accessibility obligations. But several district courts in different jurisdictions have ruled on the issue, and in so doing have reached conflicting results. Some have ruled that a website must comply with the ADA only if it has a “nexus” to the goods or services sold out of a physical location, such as a brick-and-mortar store. A growing number have ruled that any website, even if it is an online-only business, may be subject to the ADA. Other jurisdictions have yet to address website accessibility specifically, but have required a nexus to a physical location in other ADA contexts that may prove relevant to the legal analysis.

In August 2017, Judge Weinstein of the Eastern District of New York denied retailer Blick Art Materials’ motion to dismiss a website accessibility lawsuit under the ADA and parallel state law. The court found that Blick’s website was subject to the ADA, even for the goods and services that it sold independently of any physical retail location. The judge rejected Blick’s arguments that the court should wait for DOJ guidance on a technical website accessibility standard, and that it would violate Blick’s due process rights to require its website to comply with the ADA without any administrative standards or regulations.

This opinion follows a series of website accessibility rulings for plaintiffs in 2017, including rulings against a group of Five Guys franchisees in the Southern District of New York, against Hobby Lobby and later Dave & Busters’s in the Central District of California, and against Winn-Dixie in the Southern District of Florida, which ended with the first website accessibility trial verdict. But in Florida, defendant Bang & Olufsen obtained a dismissal because the plaintiff failed to establish a nexus between the company website and its physical locations. In California, a judge dismissed a website accessibility suit against Dominoes, finding that the company had met its ADA obligations by providing a 24-hour toll-free phoneline to assist visually-impaired customers. The judge further ruled that to require website accessibility without meaningful administrative guidance would violate Dominoes’ due process rights. Yet three months later, another judge in the same federal district ruled otherwise in the Hobby Lobby decision. Similarly, in the October 2017 Dave & Buster case, the court recognized that providing a disability assistance telephone number may be an alternative means to comply with the ADA, but refused to dismiss the lawsuit, in part because it was unclear if the ADA notice and phone number itself were accessible (i.e., could be read via screen-reader software).

Bringing Your Company Website into Compliance with the ADA

What should you do if you determine that your company website may be subject to the ADA? Different situations may call for a different response. Consider the ways that you might make your website more accessible to consumers with disabilities. For some businesses, in some industries, this may mean complying with some or all of the Web Content Accessibility Guidelines (WCAG) 2.0. These guidelines are published by the World Wide Web Consortium (W3C) and are widely accepted as an industry standard for website accessibility, although no law yet requires private businesses to comply with them. There also appears to be an increasing expectation that your website should be compatible with screen reader technology such as JAWS or NVDA. This may require the services of an accessibility consultant who can make the necessary modifications to your website’s source code.

There are shorter-term steps that may minimize your risk of liability. You may be able to implement a temporary workaround, like a 24-hour hotline or remote assistance for consumers with disabilities. You might make your website’s services, such as coupons or membership savings or loyalty programs, available via alternative means. This may require you to train key staff to be able to address disability-related questions and requests. Perhaps your company can set up a committee tasked with implementing these accessibility modifications, and involve individuals with disabilities in the process. The idea is to show your company’s commitment to solving accessibility issues in the interim while your website developer or consultant makes the necessary modifications. Experienced counsel, working in conjunction with the right accessibility expert, can guide you toward efficient, effective solutions that will maximize your business opportunities while minimizing your risk of legal liability.

Working on a website can be difficult. Adding new media and updating pages is chore, even though you know your company website needs to evolve and become more accessible to the many users you are trying to reach. Maybe when you first built it, accessibility wasn’t even really discussed. But now you’ve taken a step back, looked at your customer base with a desire to include everyone and you’ve realized just how important it is to make your site accessible. However, the thought of building a robust site that can do all the things you want it to do is overwhelming.

What is Web Accessibility

A practice of designing and coding the website in order to provide complete compatibility in accessing it by people with disabilities. In addition, it is a way to improve search engine optimization only an ADA Compliant Web Designer will help you to make your website Compliant. Is your website compatible? By going through the checklist below, you can get the answer.

Assessing Current Web Pages and Content

  • The website must include a feature like a navigation link at the top of the page. These links have a bypass mechanism such as a “skip navigation” link. This feature directs screen readers to bypass the row of navigation links and start at the web page content. It is beneficial for people who use screen readers to avoid to listen to all the links each time they jump to a new page.
  • All the links should be understandable when taken out of the context. For example, images without alternative text and links without worded as “click here”.
  • All the graphics, maps, images, and other non-text content must provide text alternatives through the alt attribute, a hidden/visible long description.
  • All the documents posted on the website should available in HTML or another accessible text-based format. It is also applicable to other formats like Portable Document Format (PDF).
  • The online forms on the website should be structured so assistive technology can identify, describe and operate the controls and inputs. By doing this, people with disabilities can review and submit the forms.
  • If the website has online forms, the drop-down list should describe the information instead of displaying a response option. For instance, “Your Age” instead of “18-25”.
  • If the website has data charts and tables, they should be structured so that all data cells are associated with column and row identifiers.
  • All the video files on the website must have audio descriptions (if necessary). This is for the convenience of blind people or for having a visual impairment disability.
  • All the video files on the website must have synchronized captions. People with hearing problems or deaf can access these files conveniently.
  • All the audio files on the website should have synchronized captions to provide access to people who are deaf or hard of hearing.
  • All web pages should be designed so that they can be viewed using visitors’ web browser and operating system settings for color and font.

About Website Accessibility Policy and Procedures

  • One must have a written policy on website accessibility.
  • The website accessibility policy must be posted on the website at a location where it can be easily found.
  • The procedure should be developed to ensure that content is not added to the website until it has been made accessible.
  • It should be confirmed that the website manager has checked the code and structure of all new web pages before they are posted.
  • While adding the PDFs to the website, these should be accessible. Also, the text-based versions of the documents should be accessible at the same time as PDF versions.
  • Make sure that the in-house and contractor staff has received the information about the website accessibility policy and procedure to confirm the website accessibility.
  • It should be confirmed that in-house and contractor staff has received appropriate training on how to ensure the accessibility of the website.
  • The website should have a specific written plan if it contains inaccessible content. Also, it should include timeframes in place to make all of the existing web content accessible.
  • A complete plan to improve website accessibility should be posted along with invited suggestions for improvement.
  • The homepage should include easily locatable information that includes contact details like telephone number and email address. This is useful for reporting website accessibility problems and requesting accessibility services with information.
  • A website should have procedures in place to assure a quick response to the visitors with disabilities who have difficulty in accessing information or services available on the website.
  • Feedback from people who use a variety of assistive technologies is helpful in ensuring website accessibility. So make sure to ask disability groups representing people to provide feedback on the accessibility of your website.
  • Testing the website using a product available on the internet is helpful, These tools are of free cost and check the accessibility of a website. They may not identify all accessibility issues and flag issues that are not accessibility problems. However, these are, nonetheless, a helpful way to improve website accessibility.

Checklist of Action Items for Improving the Accessibility of a Website

In addition, while considering the above suggestions, the following checklist initially prepared by the U.S. Department of Health and Human Services for Federal Agencies provides further guidelines on ways to make websites more accessible for persons with disabilities.

This practical advice, as well as another checklist, are available at:

Satisfying all of these items does not necessarily mean that a website complies with ADA, but it will improve the website’s accessibility and decrease the risk of litigation. Again, an Expert or Web Accessibility Consulting & Services provider should be engaged to conduct a comprehensive review of your website.
Nothing brings you closer to reality than actually facing it. This is the premise of my latest attempt to spread awareness about Web Accessibility.
For better understand, here is a link in which a practical example is shown to make the websites’ user experience better by following the guidelines. Also, it tells the issues affecting various users on the internet with solutions.
You can make your website ADA compliant in an easy way by consulting the professionals, who can do this job effortlessly. Also, you can get a quick website audit from To Be ADA Compliant that offers complete web accessibility consulting & services in California, USA.

Resource: https://dev.to/chinchang/an-interactive-and-practical-introduction-to-web-accessibility-22o1