Since 1990, Title III of the Americans with Disabilities Act (ADA) has required places of public accommodation to meet certain standards for accessibility by persons with disabilities. The traditional definition of “places of public accommodation” – stores, schools, offices, etc. – has largely remained unchanged since the ADA’s enactment. However, there is an entirely new frontier to fall under the scope of the ADA: websites.
In July 2010, the U.S. Department of Justice (DOJ) published an advance notice of proposed rulemaking seeking comment on the possibility of regulating websites as places of public accommodation under the ADA. Noting that, “[i]ncreasingly, private entities are providing goods and services to the public through websites that operate as places of public accommodation,” the DOJ took the position that it was only logical to bring websites under the same regulation as physical, brick-and-mortar stores. However, since the DOJ began its rule-making process in this area in 2010, it has postponed issuance of final rules year after year. Under the DOJ’s latest estimates, the earliest it will issue rules would be in 2018.
The DOJ proposes adopting compliance standards developed by the World Wide Web Consortium called the “Web Accessibility Guidelines” or “WCAG 2.0 AA.” These guidelines are aimed at making websites more accessible to individuals with disabilities, including blindness and low vision; deafness and hearing loss; learning limitations; movement limitations; and speech disabilities. Most of the guidelines center on the use of “alternative text”— hidden code in the script of a website — to facilitate access through “assistive technologies”— devices which can read the alternative text for a user and translate it into the needed medium, be it tactile, audio, visual, etc. Other guidelines include removing time limits, limiting automatically playing media and ensuring all website functions can be controlled through a keyboard. Many portions of these guidelines are highly technical.
While the DOJ continues to delay the rule-making process and the rollout of any final rules, companies should beware. Federal court lawsuits based on alleged website inaccessibility have spiked since the beginning of 2015 with several hundred filed against a wide spectrum of businesses – from retailers to restaurants – that provide public accommodation.
In the interim and in a landscape without specific rules, these lawsuits claim that standards established in the guidelines are the “baseline requirements” that all places of public accommodation must meet. While the DOJ has indicated that it supports and may even prefer the standards in the guidelines, nothing is officially law. This means that compliance with the ADA is theoretically possible, even if a place of public accommodation has not met the standards in the guidelines.
Until the DOJ issues final rules adopting the Web Accessibility Guidelines or the courts decide whether compliance with the guidelines is required under the ADA, companies should begin taking precautionary measures. To begin, any company with a website should test its website with available web accessibility tools to determine if it WCAG 2.0 AA compliant. In addition, companies should consider engaging a third-party consultant that specializes in web accessibility compliance to review the website and help make any adjustments necessary to better conform to WCAG 2.0 AA. Companies should also have an accessibility policy. Taking these measures early, before receipt of a litigation threat letter, is the best approach to minimize legal risk.