Tag: Accessibility

Supreme Court Says Case Over ADA ‘Tester’ Standing Is Moot, But Issue is Still Alive

On December 5, 2023, the Supreme Court of the United States vacated a case over whether a self-proclaimed “tester” had standing to bring Americans with Disabilities Act (ADA) claims against a hotel that she did not plan to visit, finding the case was moot without addressing the highly-anticipated standing issue.

Quick Hits

The Supreme Court vacated an ADA case against a hotel by a plaintiff who did not intend to stay at the hotel as moot despite the hopes of the business community that it would reduce the overwhelming number of ADA lawsuits.
The decision did not address whether such a ‘tester’ plaintiff has standing under the ADA except to say the issue is still alive and without providing any indication for how the Supreme Court or any other court will resolve the tester standing issue going forward.
A concurring opinion by Justice Thomas suggested that the plaintiff lacked standing because the only injury she suffered was so-called “informational injury” that is not protected by the ADA.
The Supreme Court vacated Acheson Hotels v. Laufer as moot but said the circuit split over whether “testers” have standing “is very much alive.” The high court further vacated the First Circuit Court of Appeals ruling that the plaintiff, Deborah Laufer, who uses a wheelchair, did have standing to bring ADA claims.

Still, the ruling failed to answer key questions about whether testers, individuals who seek out potential claims for discrimination violations against businesses, have standing to bring such claims amid a legal strategy to barrage businesses with tester lawsuits that often allege mere technical rights violations with a goal of extracting settlement payouts.

Despite once providing hope that the Supreme Court saw the Laufer case as a vehicle for reducing the overwhelming number of ADA lawsuits, including website accessibility lawsuits, when it accepted the case in March 2023, the dismissal of the case as moot does not offer relief for the business community and provides virtually no indication for how this Court (or any other court) will resolve the tester standing issue going forward.

Laufer, a self-proclaimed tester plaintiff who combed through various hotel websites searching for potential ADA violations, alleged that the website for The Coast Village Inn and Cottages in Maine, which was formerly owned by Acheson Hotels, LLC, did not provide sufficient information about its accessible accommodations in violation of Title III of the ADA and relevant U.S. Department of Justice regulations.

After the case was accepted by the Supreme Court, Laufer voluntarily dismissed her suit and asked the court to dismiss the case as moot. During oral arguments in October 2023, the justices questioned whether Laufer dropping her suit in addition to the facts that Acheson Hotels had already sold the hotel in question and the hotel’s current website is currently compliant with Title III, did not render the case moot.

But Acheson Hotels argued that the high court should decide the important standing questions while the issue was briefed and before the court as another appropriate case might not reach the high court anytime soon.

In the high court’s decision, Justice Amy Coney Barrett, stated that while the Court was “sensitive to Acheson’s concern about litigants manipulating the jurisdiction of” the Supreme Court, they were “not convinced … that Laufer abandoned her case in an effort to evade” the Court’s review. Still, Justice Barrett noted that the Court “may exercise [its] discretion differently in a future case.”

Justice Clarence Thomas stated in a separate concurring opinion that he would not dismiss the case as moot and would find that Laufer lacks standing to bring ADA claims. Justice Thomas argued that Laufer did not allege a violation of her rights under the ADA because “the ADA prohibits only discrimination based on disability—it does not create a right to information.

Justice Thomas distinguished Laufer’s claim from that in the 1968 Supreme Court case in Havens Realty Corp. v. Coleman, in which the high court held, in addressing the Fair Housing Act, that a “dignitary harm” a tester may experience from witnessing discrimination is an adequate harm to establish standing.

Justice Thomas argued that in Havens Realty, “a black tester” who was told there were no apartments available when a “white tester” was told there were “vacancies,” had standing because he had been “personally denied that truthful information.” The situation in that case “thus has no bearing on Laufer’s standing as a tester of compliance with the ADA, which provides no such statutory right to information,” Justice Thomas stated.

Next Steps

With the Supreme Court declining to address tester standing, the issue and broad circuit split remains open. At this time, it is unclear when the high court will have another opportunity to address it, and, if it does, if the plaintiff will effectively moot the case again by abandoning the claim that made its way to the Court. Additionally, while Justice Thomas’s concurrence suggested that Laufer did not have standing based on the facts of her case, the opinion did not reject “dignitary harm” as a basis for standing under Havens Realty.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more news on Supreme Court ADA decisions, visit the NLR Civil Rights section.

ADA Compliance for Law Firm Websites in 2022

Legal reasoning involves applying the law to the facts to determine the rights and duties of those involved in a situation. Lawyers frequently take the position that the application of rules should settle disputes and that policies will be considered, if at all, only when there is a high degree of uncertainty surrounding the applicability of the rule. The lawyer might take the position that it is always preferable to seek the result that would further the underlying policies, even if that result would be contrary to the clear language of the rules.

But what if no explicit rules currently exist?

That is the issue with website compliance under the Americans with Disabilities Act (ADA). The Act does not offer specific guidelines to follow; however, websites are expected to be easily accessible to everyone, including those who are disabled. The failure to create an ADA-compliant website could expose an organization to discrimination lawsuits, financial liabilities, and severe damage to its reputation.

What is the ADA?

The ADA compels certain businesses, including banks, hotels, restaurants, public transit, law firms, and others to make accommodations for people with disabilities. According to the National Law Review, the Act is divided into three parts:

  • Title I prohibits employers from discriminating against employees based on disability and requires them to provide reasonable accommodation to certain employees under specific circumstances.
  • Title II covers state and local governments.
  • Title III covers “places of public accommodation,” which the ADA does not define, but are generally private businesses or organizations that provide goods, services, facilities, privileges, or accommodations to the public. These places commonly include schools, restaurants, health care providers, social service agencies, law firms, and more.

The ADA is commonly associated with physical locations and the accommodations that certain businesses must make for people with disabilities, which include wheelchair accessibility, reserved parking, and service animals. Companies that fall under ADA Title I and operate 20 or more weeks per year with at least 15 full-time employees, or Title III – those that fall under the category of public accommodation – must be ADA-compliant.

Although physical “brick-and-mortar” locations are nearly always considered places of public accommodation, the debate is ongoing as to whether a business’s website is a place of accommodation. If so, the digital content must be accessible to all users.

A law firm website must be designed so that those who are disabled can access it easily to comply with ADA requirements. While there are no well-defined regulations that describe precisely what an ADA-compliant website should include, businesses that fall under ADA Title I or ADA Title III are required to develop a website that offers “reasonable accessibility” to people with disabilities.

Compliance Tools & Plugins

Because the ADA doesn’t offer specific guidelines for website compliance, many organizations follow the Web Content Accessibility Guidelines 2.0 (WCAG), updated to 2.1 in 2018. While WCAG isn’t a legal requirement, its requirements have been followed in the European Union and other nations since 1999 and still serves as a reference for businesses that want to improve accessibility to their website.

Under WCAG 2.1, website accessibility concerns generally fall into four groups. These include issues that are:

  • Perceivable – issues that affect users’ ability to locate and process the information on a website, e.g., many visually-impaired individuals use screen readers to distinguish between the text and the background to help them navigate online content.
  • Operable – challenges that impair users’ ability to navigate a site, e.g., functions and navigations such as online forms should be accessible via keyboard-only commands, and users who need additional time to complete them should be allowed to do so.
  • Understandable – users should be able to comprehend the information on the site, e.g., error messages that provide an explanation and directions for correcting an error should be offered.
  • Robust – can be interpreted by various devices and platforms according to the varying needs and abilities of users, e.g., the alt text that should pop up to let users know what it is when read by assistive technology when they hover over an image.

Here are more suggestions regarding what to include to help ensure ADA website compliance:

  • “Alt” tags for every media file and map
  • Descriptive HTML tags for online forms
  • Hyperlinks with descriptive anchor text
  • “Skip navigation” links on all website pages
  • Heading tags to organize text
  • Accessible PDF files
  • Subtitles, transcripts, and audio descriptions for videos
  • Accessible fonts for all applications
  • HTML tables with column headers, row IDs, and cell information
  • Captions written in English for audio files
  • Call-to-action buttons with easily accessible names and ARIA labels
  • A website accessibility policy
  • Easy to find contact information

Meeting these guidelines will make a firm’s website more accessible to those with vision or hearing impairments, as well as cognitive, language, or learning disabilities.

Court Rulings Regarding Website ADA Compliance

According to the American Bar Association (ABA), the number of accessibility-related lawsuits filed against websites has increased dramatically in recent years. Plaintiffs are basing these lawsuits on two legal theories:

  1. Title IIIs “equal access and general nondiscrimination mandate
  2. A requirement that places of public accommodation must provide auxiliary aids and services as necessary (for no extra charge)

Although neither Title III nor its regulations mention websites and mobile applications, the phase “auxiliary aids and services” includes “accessible electronic and information technology,” which covers websites and mobile apps.

ADA Title III Lawsuits Filed Each Year Graph
Image by Seyfarth via adatitleiii.com

A recent ABA analysis of court filings related to ADA website compliance found:

  • Federal courts across the country were inundated with more than 8,000 website accessibility lawsuits between 2017 and 2020.
  • In 2020, three states – New York, Florida, and California – brought more than 85 percent of all the ADA website compliance lawsuits.
  • Since 2018, website and mobile app accessibility disputes have accounted for approximately 20 percent of all ADA Title III cases initiated in federal courts, which now regularly exceed 10,000 suits each year.

These statistics do not consider a significant number of website and mobile app cases pursued in state courts, cases settled before filing in court, and DOJ enforcement proceedings that are resolved prior to court filing.

Here are some examples of court rulings related to ADA compliance and websites:

Gil v. Winn-Dixie Stores Inc.

In June 2107, a Florida court ruled in favor of a blind plaintiff who brought an ADA violation lawsuit against Winn-Dixie. The man claimed that aspects of the supermarket chain’s site weren’t compatible with screen readers, leaving him unable to order his medications online or download rewards cards. The trial court agreed that the website was inaccessible to those with impaired vision and ordered that it be brought into compliance with the WCAG 2.0 Level AA.

Although Winn-Dixie complied with the court order, in April 2021, the Eleventh Circuit Court of Appeals overturned the trial court’s decision, finding that Winn-Dixie was not in violation of the ADA because it did not need accessibility aids to conduct business. After that, however, Winn-Dixie posted an accessibility statement on its website that commits to adhere to WCAG 2.0 AA by using testers from the disability community to check the accessibility of their website periodically.

Robles v. Domino’s Pizza

Domino’s Pizza lost a website accessibility lawsuit in 2019 after years of exhaustive litigation when a federal district court in California granted the plaintiff’s motion for summary judgment after it determined that the website was indeed not fully accessible. The court ordered Domino’s to make its website compliant with the WCAG 2.0 to connect customers to the goods and services of Domino’s physical restaurants.

The court held that the ADA applied to Domino’s website and app because the Act requires places of public accommodation, like Domino’s, to offer auxiliary aids and services to make visual materials available to blind individuals. Although customers primarily access the Domino’s website and app outside its physical restaurants, the court found that the Act pertains to the services of public accommodation, not services in a place of public accommodation.

Andrews v. Blick Art Materials

In 2017, Victor Andrews, who is blind, filed a lawsuit against Blick Art Materials for website inaccessibility. Andrews alleged that because Blick’s website was inaccessible, he could not navigate and purchase items on the defendant’s website independently. When Blick made a motion to dismiss the lawsuit, Judge Jack Weisenstein denied it and made this statement:

Today, internet technology enables individuals to participate actively in their community and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.

The ruling in this case and others illustrates that businesses need to consider their websites equivalent to a place of public accommodation, which puts them at risk of being sued, even without explicit web accessibility regulations.

Latest DOJ Guidelines

In 2010, the Department of Justice (DOJ) launched a rulemaking process to address ADA requirements for website accessibility, including technical standards for accessible websites. However, that effort stalled for seven years during the Obama administration (even though the administration continued to pursue investigations and enforcement actions against businesses with inaccessible websites).

The Trump administration abandoned the process to interpret the ADA entirely in 2017. In 2018, the DOJ revealed that it would not give official guidance regarding website accessibility under the Act, releasing this statement:

The Department is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.

Since the DOJ’s withdrawal, the number of lawsuits involving website accessibility increased dramatically, raising awareness regarding website accessibility among businesses but also causing confusion surrounding what features an ADA-compliant website should include. As a result, numerous website accessibility consulting companies emerged promising inexpensive solutions. However, some have been challenged in court.

In June 2018, some bipartisan members of the U.S. House of Representatives sent a letter to Attorney General Jeff Sessions encouraging the DOJ to release clear website accessibility regulations to diminish the unclear nature of current legislation. On September 25, 2018, the DOJ responded by stating that, at this time, the DOJ would not be issuing web accessibility regulations under the ADA: “The Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”

In March 2022, the DOJ issued further web accessibility guidance under the ADA. The “new” guidance references both the WCAG – which are voluntary – and Section 508 standards, which set standards for federal websites, and indicates that the DOJ supports the notion that sites of public accommodation must be accessible, and in the absence of explicit regulations, websites can be flexible in how they choose to comply with the ADA’s requirements. However, the guidance does not clarify what such flexibility or choice entails and– not necessarily the direction regulation-seekers are looking for, since it provides no substantially new information regarding the vagueness of website accessibility requirements under the ADA.

Final Thoughts

As accessibility regulations for websites remain unclear, it can be easy for organizations to assume that they cannot be sued for noncompliance. However, with no specific standards to follow, law firms and other businesses must do their best to interpret the ADA, practice website accessibility as they see fit, and try to avoid website accessibility-related lawsuits.

One more thing to consider: ambiguity runs both ways, and even though an organization might think its website is accessible, a disabled person might think otherwise, providing the grounds for a lawsuit. Organizations aren’t granted immunity simply because of a lack of clarity in legislation. Instead, uncertainty allows for interpretation by anyone, including the courts.

This article was authored by Jan Hill of Lawmatics.

For more business of law legal news, click here to visit the National Law Review.

©2022 — Lawmatics

Practical Tips and Tools for Maintaining ADA-Compliant Websites

Title III of the American with Disabilities Act (ADA), enacted in 1990, prohibits discrimination against disabled individuals in “places of public accommodation”—defined broadly to include private entities that offer commercial services to the public. 42 U.S.C. § 12181(7). Under the ADA, disabled individuals are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, and accommodations offered by a place of public accommodation. Id. § 12182(a). To comply with the law, places of public accommodation must take steps to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals.” Id. § 12182(b)(2)(A)(iii).

In the years immediately following the enactment of the ADA, the majority of lawsuits alleging violations of Title III arose as a result of barriers that prevented disabled individuals from accessing brick-and-mortar businesses (i.e., a lack of wheelchair ramps or accessible parking spaces). However, the use of the Internet to transact business has become virtually ubiquitous since the ADA’s passage almost 30 years ago. As a result, lawsuits under Title III have proliferated in recent years against private businesses whose web sites are inaccessible to individuals with disabilities. Indeed, the plaintiffs’ bar has formed something of a cottage industry in recent years, with numerous firms devoted to issuing pre-litigation demands to a large number of small to mid-sized businesses, alleging that the businesses’ web sites are not ADA-accessible. The primary purpose of this often-effective strategy is to swiftly obtain a large volume of monetary settlements without incurring the costs of initiating litigation.

Yet despite this upsurge in web site accessibility lawsuits—actual and threatened—courts have not yet reached a consensus on whether the ADA even applies to web sites. As discussed above, Title III of the ADA applies to “places of public accommodation.” A public accommodation is a private entity that offers commercial services to the public. 42 U.S.C. § 12181(7). The First, Second, and Seventh Circuit Courts of Appeals have held that web sites can be a “place of public accommodation” without any connection to a brick-and-mortar store.1 However, the Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have suggested that Title III applies only if there is a “nexus” between the goods or services offered to the public and a brick-and-mortar location.2 In other words, in the latter group of Circuits, a business that operates solely through the Internet and has no customer-facing physical location may be under no obligation to make its web site accessible to users with disabilities.

To make matters even less certain, neither Congress nor the Supreme Court has established a uniform set of standards for maintaining an accessible web site. The Department of Justice (DOJ) has, for years, signaled its intent to publish specific guidance regarding uniform standards for web site accessibility under the ADA. However, to date, the DOJ has not published such guidance and, given the agency’s present priorities, it is unlikely that it will issue such guidance in the near future. Accordingly, courts around the country have been called on to address whether specific web sites provide sufficient access to disabled users. In determining the standards for ADA compliance, several courts have cited to the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA (or its predecessor, WCAG 2.0), a series of web accessibility guidelines published by World Wide Web Consortium, a nonprofit organization formed to develop uniform international standards across the Internet. While not law, the WCAG simply contain recommended guidelines for businesses regarding how their web sites can be developed to be accessible to users with disabilities. In the absence of legal requirements, however, businesses lack clarity on what, exactly, is required to comply with the ADA.

Nevertheless, given the proliferation of lawsuits in this area, businesses that sell goods or services through their web sites or have locations across multiple jurisdictions should take concrete steps to audit their web sites and address any existing accessibility barriers.

Several online tools exist which allow users to conduct free, instantaneous audits of any URL, such as those offered at https://tenon.io/ and https://wave.webaim.org/. However, companies should be aware that the reports generated by such tools can be under-inclusive in that they may not address every accessibility benchmark in WCAG 2.1. The reports also can be over-inclusive and identify potential accessibility issues that would not prevent disabled users from fully accessing and using a site. Accordingly, companies seeking to determine their potential exposure under Title III should engage experienced third-party auditors to conduct individualized assessments of their web sites. Effective audits typically involve an individual tester attempting to use assistive technology, such as screen readers, to view and interact with the target site. Businesses also should regularly re-audit their web sites, as web accessibility allegations often arise in connection with web sites which may have been built originally to be ADA-compliant, but have fallen out of compliance due to content additions or updates.

Companies building new web sites, updating existing sites, or creating remediation plans should consider working with web developers familiar and able to comply with the WCAG 2.1 criteria. While no federal court has held that compliance with WCAG 2.1 is mandatory under Title III, several have recognized the guidelines as establishing a sufficient level of accessibility for disabled users.3 Businesses engaging new web developers to design or revamp their sites should ask specific questions regarding the developers’ understanding of and ability to comply with WCAG 2.1 in the site’s development, and should memorialize any agreements regarding specific accessibility benchmarks with the web developer in writing.

1 See Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (“By including ‘travel service’ among the list of services considered ‘public accommodations,’ Congress clearly contemplated that ‘service establishments’ include providers of services which do not require a person to physically enter an actual physical structure.”); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).

2 See Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010) (“Our court is among those that have taken the position that the term is limited to physical accommodations”) (citation omitted); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Haynes v. Dunkin’ Donuts LLC, 741 F. App’x 752, 754 (11th Cir. 2018) (“It appears that the website is a service that facilitates the use of Dunkin’ Donuts’ shops, which are places of public accommodation.”).

3 See, e.g. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907 (9th Cir. 2019) (holding that failure to comply with WCAG is not a per se violation of the ADA, but that trial courts “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”).

© 2019 Vedder Price
This article was written by Margaret G. Inomata and Harrison Thorne of Vedder Price.
For more web-related legal issues, see the National Law Review Communications, Media & Internet law page.

When Good Sites Go Bad: The Growing Risk of Website Accessibility Litigation

For a growing number of companies, websites are not only a valuable asset, but also a potential liability risk. In recent years, the number of website accessibility lawsuits has significantly increased, where plaintiffs with disabilities allege that they could not access websites because they were incompatible with assistive technologies, like screen readers for the visually impaired.

If you have never asked yourself whether your website is “accessible,” or think that this issue doesn’t apply to your company, read on to learn why website accessibility litigation is on the rise, what actions lawmakers and the courts are taking to try to stem the tide, how to manage litigation risk, what steps you can take to bring your company’s website into compliance, and how to handle customer feedback on issues of accessibility.

The Growing Risk of Website Accessibility Litigation

In recent years, there has been a nationwide explosion of website accessibility lawsuits as both individual lawsuits and class actions. Plaintiffs have brought these claims in federal court under Title III of the Americans with Disabilities Act (ADA) and, in some cases, under similar state and local laws as well. In 2018, the number of federally-filed website accessibility cases skyrocketed to 2,285, up from 815 in the year prior. In the first half of 2019, these cases have increased 51.7% over the prior year’s comparable six-month period, with total filings for 2019 on pace to break last year’s record by reaching over 3,200.

Why Website Accessibility Litigation is on the Rise

The ADA was enacted in 1990 to prevent discrimination against people with disabilities in locations generally open to the public (known as public accommodations). The ADA specified the duties of businesses and property owners to make their locations accessible for people with disabilities, but it was enacted before conducting business transactions over the internet became commonplace. With the rapid growth of internet use, lawsuits emerged arguing that websites were places of public accommodation under the meaning of the ADA.

These claims have presented serious questions about whether, when, and how website owners must comply with the ADA. There is no legislation that directly sets out the technical requirements for website accessibility. And while the U.S. Department of Justice (DOJ) has stated that “the ADA applies to public accommodations’ websites,” it has not clarified exactly what standards websites must meet to comply with the law. In the absence of clear guidance, courts considering the question have frequently looked to the Web Content Accessibility Guidelines (WCAG), first developed by the World Wide Web Consortium (W3C) in 1999, but most recently updated in 2018.

In 2017, federal district courts in Florida and New York ruled that business websites failing to meet WCAG guidelines can violate Title III of the ADA, opening the door for litigants to bring an onslaught of claims in these courts. As a result, the rate at which these suits have been filed has skyrocketed, especially in New York and Florida, reaching businesses based throughout the U.S. and internationally. With the pace of these suits showing no signs of slowing, it is critical that every business operating a website consider how to manage the growing risk of litigation.

A Future Fix?
Some recent developments suggest that lawmakers or courts may soon stem the tide.  Congress may decide to enact precise standards, or the DOJ might give clarification or promulgate new rules. At the state level, lawmakers in New York have announced plans to address website accessibility suits based on an outcry from the business community.

Recent decisions in the Southern District of New York and the Fourth Circuit suggest that companies can successfully move to dismiss accessibility suits after mooting claims by taking swift remedial action or by showing that the plaintiff was neither eligible nor in a location to receive the goods or services provided on the website. In addition, the Eleventh Circuit and the Supreme Court may soon weigh in on whether Title III of the ADA categorically applies to all websites and apps.

How to Manage Litigation Risk for Website Accessibility

Knowing your level of exposure is an important first step. Individual risk is currently based on three factors:

  • Location: Brick and mortar locations, the delivery of products, or the performance of services in New York or Florida heighten a company’s exposure.
  • Industry: The present trend shows that retail, food service, hospitality, banking, entertainment industries, and educational institutions are especially at risk.
  • Current website structure: Sites with e-commerce functions or purchased from third-party developers not currently in compliance with WCAG standards are popular targets.

Unfortunately, it is often difficult to predict the cost and complexity of bringing a website into WCAG compliance-based simply on viewing it. An audit of the source code is often required. That said, you can start with a review of your site and develop plans and processes for accessibility. The first steps can include:

  • Assess current compliance: Use free online tools like wave and chrome vox and/or enlist a third-party audit to help you understand your current level of accessibility.
  • Plan for future compliance: Create an overall plan for achieving accessibility on a timeline that makes business sense.
  • Take immediate action: Adopt first-step improvements that can be implemented immediately, and create a process for considering accessibility before all future implementations.

Bringing your business into compliance with WCAG web standards does not need to be a standalone project. By integrating accessibility into regular updates, redesigns, and new pages, you can make meaningful improvements as part of your existing process. And if you don’t have a process for ongoing maintenance and updates on your website, consider whether your website is still looking fresh and modern and if it is still an accurate expression of your corporate brand.

Include in-house and third-party development teams as stakeholders in the process. Make accessibility a discussion in all new engagements and set expectations for accessibility going forward for new and existing teams:

  • Increase accessibility awareness: Make accessibility the topic of the next all-hands meeting with all stakeholders.
  • Ask third-party developers and vendors: Specifically, discuss your website’s current accessibility and which site options are readily available.
  • Integrate accessibility in projects: Ensure that agreements for ongoing and future site additions and upgrades incorporate accessibility. Seek representations, ask about compliance levels, and consider seeking warranties and indemnification.

Good customer care is always good business, but making thoughtful use of feedback on your website is a critical step to reducing your risk of an accessibility lawsuit. Everyone on the customer care team should be trained on the risk posed by non-compliance, and they should be empowered to carefully consider and respond to website feedback. The development team should also ensure that the site, whatever its level of WCAG compliance:

  • Encourages feedback: Provide a way for users to give feedback on and receive assistance with accessibility.
  • Supports engagement with feedback: Document, consider, and carefully respond to user feedback.
  • Reflects expert input: When receiving feedback, notices, complaints, or threatened litigation, consult with legal counsel and website accessibility experts as early as possible to ensure that your next steps limit potential liability.

Website accessibility is a fast-moving area of law that is primed for reform. With an increasing number of conflicting decisions and the possibility of new legislation or Supreme Court guidance, we will be closely monitoring this topic in the coming years.

©2019 Pierce Atwood LLP. All rights reserved.

DOJ Settlement Suggests Push to Expand ADA Coverage to All Websites and Apps

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The chance of future DOJ investigations justifies companies’ reviews of customer-oriented websites and apps for accessibility.

As consumers continue to use the Internet and their smartphones for their shopping in astonishing numbers, especially on this Cyber Monday, a recent Department of Justice (DOJ) settlement agreement raises questions and potential serious implications for any company with customer-oriented websites or mobile applications. The settlement agreement requires Ahold USA., Inc. and Peapod, LLC (Peapod) to make the www.peapod.com website and Peapod’s mobile applications accessible to the disabled, including persons with vision, hearing, and manual impairments. The settlement agreement demonstrates that the DOJ is reviewing and/or monitoring websites and mobile apps for accessibility and remains aggressive in its push to extend the requirements of Title III of the Americans with Disabilities Act (ADA) to all websites and mobile apps—even when the sites are unrelated to actual physical places of public accommodation. According to the settlement agreement, the DOJ concluded that www.peapod.com was inaccessible to the disabled after initiating a “compliance review” authorized by Title III and its implementing regulations.[1] Peapod, however, contested the DOJ’s conclusion that www.peapod.com and Peapod’s mobile apps were not ADA compliant.

The settlement agreement is particularly noteworthy because www.peapod.com is a purely online grocery delivery service, unrelated to a “brick and mortar” physical place of public accommodation. Most courts considering application of the ADA to websites require a website to have a “nexus” to a physical place.[2] In the past, the DOJ has required websites and mobile apps to be accessible—for example, in a March 2014 consent decree with H&R Block. However, unlike the H&R Block consent decree, which involved a website and mobile apps with a nexus to physical places, the Peapod settlement agreement requires that a website and apps with no nexus to a physical place be made accessible to the disabled. The Peapod settlement agreement therefore shows that the DOJ’s Notice of Proposed Rulemaking (NPRM), which is expected in March 2015, may require—in the words of the Abstract for the DOJ’s NPRM—the websites and apps of “private entities of all types,” even “[s]ocial networks and other online meeting places” to comply with the ADA.

The settlement agreement also indicates which standards the DOJ’s regulations eventually may require websites and mobile apps to meet. The settlement agreement requires www.peapod.com and Peapod’s mobile apps to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA). The DOJ has required compliance with the WCAG 2.0 AA in the past, including in the H&R Block consent decree. The Peapod settlement agreement further requires Peapod to designate a Website Accessibility Coordinator to coordinate compliance with the agreement; adopt a Website and Mobile Application Accessibility Policy; post a notice on its home page on its accessibility policy, which would include a toll-free number for assistance and a solicitation for feedback; annually train website content personnel on conforming Web content and apps to the WCAG 2.0 AA; seek contractual commitments from its vendors to provide conforming content, or (for content not subject to a written contract) seek out content that conforms to the WCAG 2.0 AA; modify bug fix priority policies to include the elimination of bugs that create accessibility barriers; and conduct automated accessibility tests of the website and apps at least once every six months and transmit the results to the government. The settlement agreement, which stays in effect for three years, additionally provides that every 12 months, the Website Accessibility Coordinator must submit a report to the government that details Peapod’s compliance or noncompliance with the agreement. Peapod is not the only entity that will conduct testing under the settlement agreement. At least once annually, individuals with vision, hearing, and manual disabilities will test the usability of the Web pages. Notably, however, the settlement agreement does not impose damages or a civil penalty on Peapod.

There is a chance that the DOJ’s eventual regulations will differ from the standards to which the DOJ requires Peapod to conform. The settlement agreement accounts for that possibility. It states that if the DOJ promulgates final regulations on website accessibility technical standards during the term of the settlement agreement, the parties must meet and confer at either’s request to discuss whether the agreement must be modified to make it consistent with the regulations.

[1]. See 42 U.S.C. § 12188(b)(1)(A)(i) (“The Attorney General . . . shall undertake periodic reviews of compliance of covered entities under this subchapter.”); 28 C.F.R. § 36.502(c) (“Where the Attorney General has reason to believe that there may be a violation of this part, he or she may initiate a compliance review.”).

[2]. See, e.g., Nat’l Fed. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953–56 (N.D. Cal. 2011).

ARTICLE BY

Anne Marie Estevez
Beth S. Joseph
Christopher K. Ramsey
OF
Morgan, Lewis & Bockius LLP