As Companies Rush to Embrace the Internet and Other Electronic Technologies, They Must Be Mindful of This Very Real Exposure to Liability
The Americans with Disabilities Act (ADA) not only protects qualified disabled individuals in the workplace who can perform the essential functions of their jobs with or without reasonable accommodations, it also extends coverage in Title III to all “places of public accommodation.” Historically, aggrieved plaintiffs pursuing claims under Title III focused their efforts on “brick and mortar” places of public accommodation, such as retail establishments and the hospitality industry, to force the removal of physical barriers and ensure that disabled individuals enjoy equal opportunities to use facilities in the same manner as nondisabled individuals. Whether it was a lack of parking spaces for the disabled, or restrooms and bathrooms that did not accommodate the disabled, the courts were flooded with claims demanding remediation and compensation. Most cases were quickly resolved, given the detailed remediation guidelines and building codes that exist.
Today, that litigious focus has shifted to another “place of public accommodation” — public websites utilized by these brick-and-mortar entities to conduct business, as well as those that exist only in cyberspace. The American Bar Association recently held a seminar entitled: “Most Websites Are Not ADA Compliant: Is Yours One of Them?”. In fact, as of this writing, some 60-70 “Web accessibility” lawsuits are pending in federal courts across the country. The difference with these lawsuits is that there are no guidelines as to what constitutes an accessible website in the private sector. Nonetheless, the U.S. Department of Justice, which enforces Title III of the ADA, has been very aggressive in targeting private employers and industries with inaccessible websites.
As companies across the country rush to embrace the Internet and other electronic technologies, they must be mindful of this very real exposure to liability — website inaccessibility. Web accessibility means that people with disabilities can use the Web. More specifically, it means that people with disabilities cannot only perceive, understand, navigate and interact with the Web, but can also contribute to it. In their urgency to establish an e-commerce presence, companies often forget to consider the needs of those who are potentially left behind, particularly people with disabilities. Web accessibility also benefits others, including older people with changing abilities due to aging. Web accessibility encompasses all disabilities that affect access to the Web, including visual, auditory, speech, cognitive and neurological disabilities.
In response, plaintiffs and nationally recognized advocacy groups for the disabled have flooded federal courts across the country with Title III lawsuits. Their goal is not necessarily to recoup monetary damages, but to force companies to remediate their websites so that they are accessible to the disabled and comply with federal law.
This article reviews the specific nature of the Web accessibility issue, current litigation and basic remedial measures companies can undertake to make their websites more user-friendly for the disabled and comply with federal law.
According to the Department of Justice (DOJ), an accessible Web design provides accessibility for users with disabilities without disturbing the creative “look and feel” of Web pages. See, “Web Accessibility.” The department notes that “a blind user may be able to independently retrieve and fill out important government forms, apply for services or obtain information as quickly and easily as other users, if Web pages are designed with accessibility in mind.” Id.
Web accessibility does not just happen by installing new operating software; it can be a complicated, expensive process. Despite the lack of guidelines for private-sector employers, the DOJ has published a number of extensive technical assistance manuals to help Web developers understand how to make their sites accessible to all. The DOJ has also developed the United States Access Board to establish guidelines for implementing Section 508 of the Rehabilitation Act of 1973. Section 508 requires that individuals with disabilities seeking information or services from a federal agency have access to and use of information and data that is comparable to that provided to the nondisabled public, unless an “undue burden” would be imposed. Unfortunately, there is nothing to guide companies as to what an “undue burden” is when attempting to remediate a website.
Most companies know the ADA as the law that makes it unlawful to discriminate in employment against a qualified individual with a disability. This part of the law — Title I — is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).
Title III prohibits discrimination in “places of public accommodation,” which includes computers used by the public. Businesses are required to provide full and equal enjoyment of all services, facilities and/or privileges at public accommodations based on any protected characteristics. Brick-and-mortar companies have had to remediate certain portions of their business establishments to remove physical barriers to the disabled, such as inadequate parking, because of lawsuits. But the ADA is not just a “building code” law, inasmuch as the DOJ and a number of federal courts have declared websites to be places of accommodation requiring the same accessibility.
Current Web Accessibility Litigation
The ADA provides for private enforcement actions in federal court by individuals as well as by advocacy organizations aligned with the individual(s) bringing the action. In these actions, the only remedy is injunctive relief — i.e., remediation of the subject website. However, if the DOJ is involved, then noncompliant businesses are subject to compensatory damages, punitive damages and attorney fees to prevailing plaintiffs.
Much of the current federal court litigation has been initiated by just a handful of plaintiffs, although many are backed by nationally known advocacy groups, including the National Association for the Deaf and the American Council for the Blind. This is not unlike the plaintiff dynamics of the more traditional brick-and-mortar claims.
The diversity of public and private business entities hit with these lawsuits is staggering. Among the more recognizable are Netflix, eBay, Bank of America, the National Basketball Association, the National Football League and Major League Baseball. Universities and retailers are a favorite target. Anyone with any type of public Web presence is at risk.
Much of the litigation advances the argument that websites are covered by Title III as places of public accommodation. Courts are divided as to whether Title III applies only to brick-and-mortar establishments, and not to entities that only exist in cyberspace. That can sometimes result in conflicting results for companies doing business in different states. Netflix is just one example.
Most, if not all, of the current litigation, as well as the public-sector litigation that preceded it, is usually informally settled between the parties. Businesses that attempt to defend these lawsuits inevitably draw the attention of the DOJ, which is not at all afraid to become involved, thereby adding a more significant damages component to the equation.
One prominent example is National Association of the Deaf v. Harvard and MIT, Nos. 3:15-cv-30023 and 3:15-cv-30024 (Mass. Dist. Ct. 2016). On Feb. 11, 2015, the National Association of the Deaf and four hearing-impaired individuals filed class action lawsuits against Harvard University and the Massachusetts Institute of Technology in the U.S. District Court of Massachusetts. The lawsuits allege that the universities discriminate against “deaf and hard-of-hearing people” by failing to caption the online content they make available to the general public, including what are known as “massive open online courses” (MOOCs).
The plaintiffs claim that Harvard and MIT also violate the ADA by denying deaf and hard-of-hearing people access to the thousands of videos and audio tracks that are made publicly available on a wide range of topics. These include, for example, campus talks by high visibility personalities such as President Barack Obama and Microsoft founder Bill Gates; educational videos made by MIT students for use by K-12 students; “self-help” talks; entire semesters’ worth of courses; and regular podcasts, such as the “HBR IdeaCast” by the Harvard Business Review.
Harvard filed to dismiss or stay the lawsuit until the DOJ issued new rules on how the ADA applies to websites, but the court rejected that argument, stating that such a decision could keep the plaintiffs waiting for years. (In fact, the DOJ announced not too long ago that such regulations or guidance will not be available until 2018!) Nonetheless, the DOJ did weigh in on the case and argued that the disability discrimination laws have clear jurisdiction over video on the Internet, and that closed captions are required to make videos accessible to deaf or hard-of-hearing students.
Basic Remedial Measures
Although no standards have been formally adopted by the DOJ for private businesses, the Web Content Accessibility Guidelines 2.0 are considered the gold standard for accessible website design, in general. WCAG 2.0 includes a wide range of recommendations for making Web content more accessible.
So, how does a business go about determining whether its website complies with the ADA? The first step is to take stock of all Web-based communications. It is suggested that a business start with all websites that are accessible to the public, before turning its attention inward. This is suggested because potential plaintiffs are literally scouring cyberspace for any Web presence that does not comply with the ADA. Notwithstanding the lack of guidance on this issue, the DOJ has published a “Voluntary Action Plan for Accessible Websites” that recommends: 1) establishing a policy that a company’s Web pages will be accessible; 2) creating a process for implementation; and 3) ensuring that all new and modified Web pages and content are accessible. Specifically, it recommends that companies:
- Develop a plan for making your existing Web content more accessible. Describe your plan on an accessible Web page. Encourage input on improvements, including which pages should be given high priority for change. Let citizens know about the standards or guidelines that are being used. Consider making the more popular Web pages a priority.
- Ensure that in-house staff and contractors responsible for web page and content development are properly trained.
- Provide a way for visitors to request accessible information or services by posting a telephone number or email address on your home page. Establish procedures to assure a quick response to users with disabilities who are trying to obtain information or services in this way.
- Periodically enlist disability groups to test your pages for ease of use. Incorporate the information they provide to increase accessibility.
Legal obligations aside, private business owners surely recognize that disabled individuals represent a lucrative, presumably untapped, consumer market. Accessible websites for the disabled mean more customers, goodwill and good business. With this literal wave of litigation expected to continue, companies are well advised to begin auditing their websites now (and annually thereafter) to determine the easiest fixes first, and proceed from there to ensure that they are fully compliant with federal law. Experienced website developers should be well-versed in making websites compliant.
***** Philip R. Voluck is the managing partner of the Pennsylvania office of Kaufman Dolowich & Voluck, where he concentrates his practice in the area of employment practices liability defense. He has a particular focus on handling claims of employment discrimination, retaliation and wrongful discharge.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.