ADA Compliant Websites and The LawSeptember 19, 2018 Peter A. Liefer II
On the 26th of July, 1990, former US President George H. W. Bush signed the Americans with Disabilities Act. Its top priority was to avoid discrimination due to a person’s disability. Like its predecessor, The Civil Rights Act of 1964, which focused on race, color, sex, national origin, and religion, ADA made unjust treatment of people with disabilities illegal and punishable by law.
Today, it’s had a significant impact on American society. Public buildings, transportation, schools, and even jobs are required to follow the ADA Guidelines and Checklists.
ADA Extended to the World Wide Web
When Congress enacted the ADA in 1990 the internet as we know it today didn’t exist. So, the ADA or the regulations the DOJ promulgated under the ADA, did not specifically address access to websites for the disabled.
It wasn’t until July 26, 2010, that the US Department of Justice issued an Advance Notice of Proposed Rulemaking (ANPRM) addressing the accessibility of Web information and services of state and local government entities (title II) and public accommodations (title III).
Web Accessibility Under the ADA
The statute´s nondiscrimination mandate broadly reached goods and services provided by covered entities on websites over the Internet.
Title III of the ADA provides that:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
Title III of the ADA and its corresponding regulations define a “place of public accommodation” as a facility whose operations affect commerce and that falls within at least one of the following 12 categories:
- An inn, hotel, motel, or other places of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor.
- A restaurant, bar, or other establishment serving food or drink.
- A motion picture house, theater, concert hall, stadium, or other places of exhibition or entertainment.
- An auditorium, convention center, lecture hall, or other places of public gathering.
- A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.
- A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, the office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishments.
- A terminal, depot, or other station used for specified public transportation.
- A museum, library, gallery, or another place of public display or collection.
- A park, zoo, amusement park, or another place of recreation.
- A nursery, elementary, secondary, undergraduate, or postgraduate private school, or another place of education.
- A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment.
- A gymnasium, health spa, bowling alley, golf course, or another place of exercise or recreation.
Does your business website fall within any of these categories? It most likely does. If so, you need to have an ADA compliant website.
What A Tangled “Web” We Weave
It is important to have some understanding of the Rule Making Process the Federal Government has to go through. This ANPRM, Advance Notice of Proposed Rulemaking, is just a “notice of intent” or simply a “request for comments.”
Next would be the issue of a Notice of Proposed Rulemaking (NPRM). At no point do these notices set into law any rules regarding what an ADA compliant website should do. That is up to Congress upon the recommendations of the Department of Justice that are gathered from these notices.
The responses they got and the many issues that arose trying to create a firm set of rules for ADA website compliance becomes very complicated. For example:
- If a business has no brick and mortar office, no specific location such as an ecommerce site – does the ADA apply to them? There are no set rules on whether entities doing business exclusively on the Internet are covered by the ADA.
- If a website requires users to use another website to reach its goods and services, like payment for items, are they liable for the accessibility of the other site? Even if it does not operate or control the payment site?
- Would it force small business to comply cause an undue financial burden on them? So then arose the idea that there should be rules based on the income of the business.
The list of issues goes on and on in DOJ documents. Because of the many complications in determining a firm set of rules the DOJ has not published any rulemaking document regarding title III, (private and commercial businesses).
We Give Up
The Justice Department finally relented on trying to create hard and fast rules for web accessibility.
On 12/26/2017 the Justice Department announced the WITHDRAWAL of the four previously announced Advance Notices of ANPRMS relating to title II and title III of the Americans with Disabilities Act for further review.
Now they say, “The Department is evaluating whether promulgating regulations about the accessibility of Web information and services are necessary and appropriate.”
Who says a new administration doesn’t change anything?
So, I don’t need to worry about ADA compliant website?
The Americans with Disabilities Act doesn’t specifically outline everything you need to do to be compliant. All we have is a general statement saying websites need to be accessible to people with a disability.
So, does this mean you are off the hook for making your website accessible to the disabled? The answer is a definite – NO!
The decisions as to what a website owner should be doing to make their website be ADA compliant has essentially been left up to the courts. There have been many website accessibility lawsuits filed in federal and state courts.
Progressively, website owners and developers are being brought into court due to non-compliance, with few courts willing to grant early motions to dismiss. Inconsistent court decisions and differing standards for determining Web accessibility, have made it a legal nightmare for both the plaintiffs and the defendants in ADA compliance lawsuits.
Some notable lawsuits in the courts recently:
- A Missouri federal judge orders a theatre to provide, upon request, captioning services for the deaf for all theatrical performances.
- A California state court held that a restaurant violated California’s Unruh Act by having a website that couldn’t be used by a blind person with a screen reader, and ordered the restaurant to comply with WCAG Level 2.0 AA and pay $4,000 statutory damages.
- A grocer Winn-Dixie was charged with violating Title III of the ADA by having a website that was not usable by a blind plaintiff to download coupons, order prescriptions, and find store locations.
It is crucial to go over the ADA Compliance very carefully to avoid lengthy and expensive legal battles. To evaluate your website for accessibility, use this free tool. http://wave.webaim.org/.
If there are issues with your website’s compliance, then please contact us soon so we can get you compliant!
To get a free ADA compliance test just click this button.
We will send a report and provide general feedback and recommendations shortly!
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