Many of our customers, especially B&Bs, motels and restaurants have been the target of lawsuits charging violation of the ADA because of websites that can't be fully accessed by disabled persons. Our carriers tell us providing equal access to websites is no different than providing equal access to a physical place of business, and insurance policies typically do not cover or offer defense for these types of lawsuits.
The best defense is to do everything you can to be inclusive across all your business touch points. This article explains what we have learned and are doing ourselves as a business, and is not intended to be legal advice. Please use this as a guide as you talk to your website professionals and legal team.
Can I be sued for claims that my website is not ADA accessible?
Lawsuits under Title III of the Americans with Disabilities Act of 1990 have proliferated in recent years against private businesses whose websites cannot be fully used by individuals with disabilities. In 2019, there were 2,256 ADA website accessibility lawsuits brought against businesses of every size and industry. Even if a judgement was not rendered, defendants incurred sizable defense costs, which in most cases was not covered by their insurance policy.
While there is currently no federal statute or regulation that specifically states that the ADA applies to businesses’ websites, it is generally considered that websites and mobile apps are part of “public accommodations” and thus fall under the ADA. In a lawsuit brought against Domino’s Pizza, the courts determined that the ability to transact business over the web is considered part of “public accommodations”. The Domino's website was incompatible with screen reading software and the user was unable to transact business. Domino’s correction of the violation or the lack of federal guidelines did not stop the lawsuit.
How can I make my website accessible?
With no guidance from the Department of Justice, industry and private standards are being used, and disputes are now resolved by the courts. A good place to start is to do your best to comply with guidelines that have been published, known as WCAG-2.0 Level AA Standards. (Web Content Accessibility Standards). Until Congress acts to clarify the ADA, courts and regulators will likely continue to cite the WCAG as the “gold standard” for ADA compliance.
WCAG 2.0 outlines four principles for accessible design.
- Perceivable, which means users must be able to perceive the information being presented. The idea is that the same web content could be perceived by a person who is color blind, a person who cannot see, and another person who cannot hear. The content would include not only text-based content, but also media such as photos, video, and sound. Many of the guidelines involve simple solutions, such as transcripts for video and audio and descriptive elements, known as alt-tags, for photographs.
- Operable, which means that users must be able to operate the interface. Most websites have hyperlinks that we can click with a mouse. What if you could not use a mouse? This principle strives to have developers make websites that disabled users can navigate solely with a keyboard or other assistive technology.
- Understandable, which means that users must be able to understand the information as well as the operation of the user interface. Websites should operate in a way that is predictable, such that users can rely on their intuition when navigating. When reading is required, the guidelines recommend that text not require reading ability more advanced than the lower secondary education level.
- Robust, which means that content must be able to be interpreted reliably by a wide variety of users, including various assistive technologies.
What steps should I take?
A good place to start is with a free website audit. The audit is an evaluation tool that will help you make your web content more accessible by identifying areas that do not meet WCAG standards. There are several sites offering this tool, but here is one that we have used http://wave.webaim.org/.
The audit may reveal contrast errors, which can be corrected by changing the background color or text color. Photos may have alternative text missing which screen readers use to describe an image to the viewer. This is easily corrected by adding alternative text to all images. Heading errors mean a reader can’t reliably follow the flow of your content. This is corrected by adding the correct header tags in the website back pages.
Hire qualified website consultants and website developers. Insist that accessibility standards be included in your web design or upgrades.
In addition to working toward website compliance, some businesses have also chosen to demonstrate accessibility by providing a 24/7 phone number to provide the kind of information otherwise available on their websites. A statement on your website that summarizes your intentions and steps regarding accessibility is also used by some businesses, and it can’t hurt to be upfront about your efforts.
Optimally, every website or app should not prevent anyone from using it regardless of any physical, mental or emotional impairment - permanent or temporary. It’s not just about avoiding a lawsuit; it’s just good business.
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