In ADA Website Accessibility Cases, Remediation May Be a Successful Defense

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Companies, universities and other organizations around the country continue to face an onslaught of lawsuits brought under the Americans with Disabilities Act (ADA) alleging that commercial websites cannot be appropriately accessed by visually impaired individuals. A recent opinion from the U.S. District Court for the Southern District of New York provides a potential roadmap for companies to stave off litigation by taking action to remediate barriers to full website accessibility.

In that case, Diaz v. The Kroger Co., No. 18 Civ. 7953 (KPF) (S.D.N.Y. June 4, 2019), the court granted Kroger’s motion to dismiss the first amended complaint, finding that it lacked subject matter jurisdiction because the ADA claims had been rendered moot by Kroger’s remediation of its website to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 — the website accessibility standards identified in the first amended complaint. Thus, the holding suggests that defendants may potentially moot ADA-website claims through swift, documented and completed remediation. The court also found that it lacked personal jurisdiction over the grocery chain based on the website alone because grocery delivery was not available to New York residents.

Case Analysis

In Diaz, the legally blind plaintiff alleged that the Kroger Company supermarket chain violated the ADA, the Human Rights Laws of both New York state and New York City, and the New York Civil Rights Law by failing to design, construct, maintain and operate its website in a way that was fully accessible to the plaintiff, who uses screen-reading software to convert online content to audio. Notably, none of the supermarket chain’s brick-and-mortar locations are in New York state.

Kroger operates a website that enables consumers to purchase goods for delivery and also provides information on promotions and coupons, as well as calorie content and recommended cook times for certain foods. The plaintiff claimed that he visited the Kroger website several times, but was unable to access information about products available for delivery or other available goods and services because the information on the website could not be rendered as text and, thus, was not compatible with his screen-reader software.

Kroger’s motion to dismiss asserted that the court lacked subject matter jurisdiction over the complaint because Kroger already had modified its website to remove access barriers. Crucially, Kroger supported its motion by submitting an affidavit from its product design manager, which asserted that the website was now compliant with WCAG 2.0 standards and that he personally investigated the alleged deficiencies and confirmed that all alleged deficiencies were remedied.

In determining that it lacked subject matter jurisdiction due to the mootness of the ADA claims, the court noted that the Kroger product design manager’s affidavit overcame the types of shortcomings often identified by courts when rejecting mootness arguments. Specifically, the court noted that, unlike in other cases where a remediation plan had been created but remediation was not yet complete, Kroger already had completed the remediation process. The product design manager’s affidavit, which specifically addressed the website’s current compliance with WCAG 2.0 standards, was attested to by the person whose job was well-positioned to understand and address the alleged accessibility problems. Furthermore, the affidavit stated that the company intended to remain compliant with the ADA, as well as any other applicable future standards.

The plaintiff’s opposition did not dispute the affidavit’s factual assertions regarding the remediation of the website, but merely argued that website content is, by its nature, constantly being modified and updated, which would jeopardize future compliance. The court rejected that argument and refused to find that an ADA-website claim can never be mooted based on the inherent characteristics of websites constantly being modified. This, of course, makes sense because to rule otherwise would mean that a company could never defeat an ADA-website claim and would be subject to endless litigation, notwithstanding the company’s best efforts toward compliance.

The court held separately that it could not exercise personal jurisdiction over Kroger through New York’s long-arm statute based on its website alone because the website did not provide grocery delivery to New York customers. The court looked to the Second Circuit’s Best Van Lines test, which considers a website’s level of “interactivity” on a spectrum ranging from passive informational websites, which do not confer jurisdiction, to fully interactive websites that knowingly transmit goods or services to customers in other states, which confer jurisdiction. The court required that the plaintiff establish a “reasonable probability” that the website actually was used to effect commercial transactions with New York customers in order to confer jurisdiction. The parties disputed whether New York residents could order groceries from the Kroger website, and the court conducted its own review of the website and confirmed that delivery was not available to any New York state ZIP code.

The nation’s courts continue to fill in the gap left by the Department of Justice’s failure to promulgate rules governing commercial websites and ADA compliance. While it remains to be seen if other courts will adopt the Diazcourt’s rationale as it relates to mootness, at least one jurisdiction has held that completed remediation efforts may render an ADA claim moot. If they have not done so already, companies, universities and other organizations with a web presence are well-advised to develop and make demonstrable progress in implementing a website accessibility compliance plan.

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.