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The ADA, the WCAG and Compliance Litigation

 

Accessibility word cloud

Title III of the ADA (Americans with Disabilities Act) prohibits discrimination against disabled persons in places of “public accommodation.” The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.

Basically, businesses that provide goods or services to the public must provide the same level of access to everyone. They must make sure to remove existing barriers to access for disabled individuals. The ADA was enacted long before digital access and e-commerce became mainstream, so businesses in every category are playing catch-up with their accessibility, especially in the digital realm. Physical spaces have been compliant for a long time, with ramps and accessible signage being commonplace for a very long time.

There is evidence that there is a trend of increasing website accessibility lawsuits brought under the ADA. According to Seyfarth Shaw LLP, this litigation trend has accelerated of late and shows no signs of abating. Claims that their websites and apps are inaccessible to blind and visually-impaired individuals are very common to businesses, and very challenging as well.

Although efforts were made a few years ago, the Department of Justice has not yet issued guidelines or introduced regulations for website accessibility. Because of this, litigation becomes complicated. Without legal guidelines, both plaintiffs and the courts have increasingly looked to Web Content Accessibility Guidelines (WCAG) which were developed by a private standards setting organization. It must be understood that WCAG has not been adopted in an administrative rulemaking process and does not establish legal requirements for ADA compliance.

Because the legal framework does not currently exist, business is pushing back and the results vary. A typical defense to website accessibility claims includes the argument that the WCAG cannot be used in place of regulatory rulemaking. As explained by retaillawadvisor.com, a few court decisions appear to support this defense, with rulings that the ADA did not apply to websites or that only minimal accessibility features were necessary for compliance. There are cases pending that challenge the applicability of the ADA to websites and use of the WCAG on constitutional due process grounds.

It should be noted that these few cases are exceptions. Many courts have allowed website accessibility claims to proceed under the ADA where a connection exists between the physical place of public accommodation and the particular website or mobile application. This pertains in large part to websites or mobile apps which enable the public to purchase, view, or reserve goods and services. These transactions are being considered as within the ADA’s scope.

Lacking legal standards, courts are increasingly incorporating the WCAG as a website accessibility standard. Even though the lack of clear regulations creates grey areas concerning the scope of accessibility measures, businesses should take notice of the growing number of website accessibility lawsuits and the majority view that the ADA applies broadly to websites and the WCAG provides de facto accessibility standards.

When it comes to accessible documents, ePub (electronic publication) is the current (and most likely future) agreed-upon standard. With technology changing so fast, having electronic publication standards will reduce the time it takes to achieve a truly fair and equal, open web for all.