Although the goal is laudable, the Americans With Disabilities Act (ADA) is a nightmare for many business owners and real estate owners. The ADA prohibits discrimination based on disability in “any place of public accommodation.” Initially the ADA’s focus was to protect disabled individuals and provide accessibility to certain locations and activities, the coverage of the regulations has been extended in the recent years into the realm of technology. As the web and mobile applications are becoming more necessary for our every-day lives, the courts are frequently expanding the ADA protections to the digital territory. With this in mind, business owners are faced with additional compliance issues to keep in mind. Sure, your storefront is ADA compliant, but is your website? Should it be? Read below to let your Chicago business lawyers at Bellas & Wachowski help you figure out how to make your website ADA compliant and avoid potential legal trouble.
The Legal FrameworkWhen George H.W. Bush signed the ADA into law in 1990, the World Wide Web mostly existed in the minds of tech students and Al Gore. Despite the growing need for clarity in web accessibility, the legislature has not amended the ADA to create new rules addressing those issues, leaving it up to the Judiciary to apply the existing law to e-commerce. In the absence of guidance from the legislature, many courts have turned to the Web Content Accessibility Guidelines (WCAG) to determine if the website is ADA compliant. The Guidelines are discussed in detail below.
Who Needs to Be Compliant?Title III of the ADA prohibits discrimination on the basis of disability in the places of public accommodations, which is defined by the Act as a business that is generally open to the public, and falls within the 12 categories listed in the ADA. But a website isn’t a place. Or is it? The general consensus is that if a company sells goods or services through its website, it will be considered to be a place of public accommodation. Some jurisdictions have tried to limit the situations where a website could be deemed to be a place of public accommodation only to those cases where there is a connection between the good or services complained and an actual physical place. Other jurisdictions, however, interpreted very broadly whether a website happens to be a place of public accommodation. For example, in National Association of the Deaf v.Netflix, the District of Massachusetts found that even though Netflix wasn’t an actual place, it functioned as a place of exhibition and entertainment (one of the twelve ADA categories), thus rendering the Netflix’s website a place of public accommodation.
What if your business doesn’t sell anything online? Recently, in Dennis Haynes v. Dunkin Donuts, the defendant argued that its website is not covered by the ADA as it merely provided information about its stores, but did not actually sell any goods or services. The U.S. Court of Appeals for the 11th Circuit disagreed. On July 31, 2018, it found that if a website merely facilitates the use of places of public accommodation, it cannot discriminate against people on the basis of disability even if those goods and services are intangible.
How Do I Make My Website Compliant?As mentioned above, the courts, as well as the DOJ, have begun to use the WCAG criteria promulgated by the World Wide Web Consortium (W3C) to determine whether a website is in compliance with the ADA. In fact, in the recent case against the Winn-Dixie supermarkets, part of the relief granted from the DOJ was an order that the plaintiff upgrade its website to comply with WCAG criteria. The version of the Guidelines that has been used by the courts – WCAG 2.0 – has three levels of compliance (A, AA and AAA). Generally, the courts have found that Level AA is sufficient to be compliant with the ADA.
The WCAG consists of twelve guidelines organized under four principles. The websites must be perceivable, operable, understandable and robust. Each guideline has testable success criteria and a list of techniques that help authors meet those guidelines and the criteria. All that is left to do is to follow over 60 requirements laid out by the WCAG to bring your website to the AA level. If it sounds scary, consider that your site probably meets many of these rules already. Below are some of the examples from each principle:
Perceivable
Operable
Understandable
Robust
A variety of software, such as WAVE, Lighthouse, can be used to test for ADA compliance. These automated tools will catch many of the simple issues. Manual testing, however, is still required to ensure that you are meeting all the requirements.
ConclusionEvery business that engages in e-commerce should carefully consider whether its website could be deemed to be a place of public accommodation, and whether it complies with the current version of WCAG. A website that is easy to navigate for the impaired clients not only steers clear from legal trouble, but is more competitive, which offsets the costs of upgrading and maintaining it. For further help to figure out whether your website must comply with the ADA requirements, consult your Chicago business lawyers at Bellas & Wachowski.
For additional information and an initial consultation, contact the Chicago Business Lawyers of Bellas & Wachowski or attorney George Bellas direct at 847.823.9032 or george@bellas-wachowski.com.