Website Accessibility Issues and the ADA

We are working to update our association’s website. I’ve heard that we need to make it accessible under the ADA. Is that true?

By Kimberly A. Pendo and edited by Jed Mandel

Accessibility Button on Computer Keyboard

Q: We are working to update our association’s website. I’ve heard that we need to make it accessible under the ADA. Is that true?

A: The Americans With Disabilities Act (“ADA”) was enacted, among other things, to prohibit discrimination against people with disabilities by requiring “places of public accommodation” to be accessible and available. A “place of public accommodation” is broadly defined as a facility operated by a private entity whose operations affect commerce. Most associations are familiar with the ADA’s requirements to make reasonable accommodations to provide physical access, such as ramps and wider aisles, and “auxiliary aids,” such as sign-language interpreters and Braille copies of handout materials. However, there are many open questions surrounding the applicability of the ADA’s requirements to websites. The key issues are whether a website is a “place of public accommodation” requiring accessibility, and, if it is, what standards should be used to evaluate a website’s accessibility.

Because it was enacted before the advent of websites and before the internet was widely used by the public, the ADA does not explicitly address website accessibility issues, and the federal government has not issued any formal rules or regulations interpreting the ADA’s application to websites. As such, there is no clear guidance available to associations and other businesses to help determine whether the ADA applies to their websites or to instruct them on how to comply with the ADA. Nevertheless, the government issued a statement in September 2018 that its position has been consistent for twenty years that the ADA applies to the websites of “places of public accommodation.” And yet, despite requests for guidance, the government has yet to provide any direction as to what that means or what is required for a website to comply with the ADA.

Not surprisingly, there has been a rise in private litigation brought by individuals with disabilities alleging that certain websites violate the “public accommodation” provisions of the ADA. The plaintiffs in those cases are often blind or visually impaired consumers who rely on screen reader software to navigate websites. Depending on how websites are constructed, they may not be compatible with screen reader software and, therefore, may not be accessible to the blind and visually impaired.

In the absence of any regulatory guidance, courts have been left to decide the wide range of issues related to website accessibility and the ADA. The decisions to date have been inconsistent. Some courts have held that for the ADA to apply to a website, a plaintiff must show a connection between the website and the business’s brick-and-mortar store or location. Other courts, however, have held that a business’s website must comply with the place of public accommodation provisions of the ADA regardless of whether it maintains a physical location.

To the extent an association’s website is considered a place of public accommodation, the next question is what standard(s) should be applied in determining whether the website meets the accessibility requirements of the ADA. Although the ADA does not require an association’s website to be equally accessible for all services, associations (and other businesses) are required to provide reasonable accommodations when requested. Some courts have held that websites should meet the voluntary standards set forth in the Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA criteria [https://www.w3.org/TR/WCAG20/] developed by the World Wide Web Consortium through its Web Accessibility Initiative. The WCAG are international voluntary standards intended to provide guidance on how to implement accessibility to Web content for people with disabilities. While some courts have referenced WCAG, others have not. Further clouding the issue, the Justice Department has indicated that organizations may provide reasonable accommodations to people with disabilities by means other than conformance with WCAG 2.0 Level AA. And yet, because the federal government has so far failed to identify what other reasonable accommodations may satisfy the ADA’s requirements, the courts are left to decide what constitutes accessibility for a website, and businesses are left to guess how best to proceed.

Unfortunately, there are numerous unanswered questions and potential legal challenges involving website accessibility. Associations are encouraged to (i) familiarize themselves with those issues; (ii) review the ADA’s requirements and the technical standards for website accessibility; and (iii) seek the advice of legal counsel to answer any questions.

The answers provided here should not be construed as legal advice or a legal opinion. Consult a lawyer concerning your specific situation or legal questions.

About the Author

This Law Review was written by Kimberly A. Pendo and edited by Jed Mandel, both of whom are founding members of Chicago Law Partners, LLC. CLP serves as the Association Forum’s general counsel.

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