When you think of the Americans with Disabilities Act (ADA), you might envision ramps to make it easier for people who use wheelchairs to physically access buildings. But today, with so much commerce being conducted online, some courts are finding that websites must also be accessible to people with visual and other impairments. That could mean big changes to how your professional, brokerage, and association websites work in the future.
The ADA is silent on the issue of online accommodation because the Act predates the widespread use of the Internet. Without clear guidance, consumers and businesses have had to turn to courts around the country to resolve the question of whether the ADA’s accessibility obligations extend to a business’s online presence. Courts are split on the question of if and when a business is obligated to create an accessible website. However, an accumulation of case law now asserts that a business’s accessibility obligations do indeed extend to its website, so it’s a smart risk management decision to evaluate your own websites now.
To further underscore the timeliness of undertaking this evaluation, activity at the Department of Justice, the federal agency responsible for enforcing the Act, demonstrates that it is likely only a matter of time before a clear mandate of web accessibility under the ADA is issued. The DOJ has long taken the broad position that the ADA’s obligations extend to all websites under Title III, the section of the ADA that applies to businesses. Back in September 2010, the DOJ issued an Advance Notice of Proposed Rulemaking regarding the accessibility of web information and services, which sought to add web accessibility requirements to Title III. Meanwhile, DOJ enforcement actions, demand letters, and complaints filed by private litigants are adding up. While a final rule isn’t expected until sometime in 2018, the DOJ’s position—and the significant amount of enforcement activity it’s conducted to underscore that position—means it’s time for professionals to start thinking about making changes.
At this point you may be asking yourself, “What exactly does an accessible website look like?” In practice, it doesn’t necessarily look all that different to people without disabilities. An accessible website allows adaptive software and specialized browsers used by persons with disabilities to augment content and make it easier to consume. For example, these programs might add text descriptions to complex graphics, voice-overs that read text aloud, or transcripts of videos. Accessible websites allow the specialized programs and browsers to easily interact with a website in order to improve and help maximize a person’s experience on the site, obtaining the site’s information in a format that takes their disability into account.
So what can you, as a business owner, do to get ahead of this issue? As a first step, contact your website provider to inquire about the current accessibility of your site, and ask what it’s currently doing to create or improve accessibility. If you operate your own website and do not have the technical expertise in-house, consult one of the many technical experts who specialize in creating and maintaining accessible websites. A technical expert can help identify where your site might fail to comply with the “Web Content Accessibility Guidelines 2.0,” a technical standard created by the World Wide Web Consortium to help developers and site managers make the web more accessible.
Once you understand what accessibility improvements to your website are needed, changes can be implemented incrementally. In their settlement orders, the DOJ has generally allowed businesses up to 18 months to implement necessary accessibility changes to their sites. And remember, even after your website is updated, you should ensure ongoing compliance with the Web Content Accessibility Guidelines 2.0 when you add new content or website features. Educate and train relevant personnel to ensure they are knowledgeable about and focused on your business’s online accessibility. Technical experts are also available to monitor your website and alert you when a change or remediation is necessary.
You might also consider making it easier for users of your site who may be disabled to get in touch. A simple feedback form can help them inform you about what accessibility features may need to be improved or added. And adding contact information for someone at your business who can respond to a particular user’s inability to access the site, or a portion of it, is a proactive step your business can take to address site accessibility issues up front in order to avoid running into legal problems later.
With more and more business being conducted over the Internet, and the likely changes to the regulatory landscape, getting out in front of the online accessibility issue is a smart business decision. Not only can it help you avoid legal risks down the road, it also establishes your business as accessible to all and may enhance your reputation and even your bottom line.
If you are attending the 2016 REALTORS® Legislative Meetings & Trade Expo in Washington, D.C., don’t miss the Risk Management and License Law Forum on May 11 from 12:15 p.m. to 1:45 p.m. The program, dedicated to website accessibility, will feature two expert speakers on the issue, including an attorney who specializes in the Americans with Disabilities Act and who has vast experience in website accessibility claims, along with a technical expert who creates and maintains accessible websites.
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