Are you confident that your business complies with federal anti-discrimination laws?  If you offer goods or services to the public through the Internet, the answer may not be as simple as you think.  Increasingly, lawsuits are targeting retailers and other service providers that have an online presence, claiming that if their websites and/or mobile apps cannot be used equally by consumers who are blind, deaf, physically impaired or otherwise disabled, they violate the Americans with Disabilities Act of 1990 (the “ADA”). This area of law is still evolving, but taking some measures now may reduce the risk that your business will be the target of a discrimination lawsuit.

Title III of the ADA prohibits discrimination against disabled persons in places of “public accommodation.” This generally requires most businesses that provide goods or services to the public to be as accessible for persons with disabilities as they are for those without.  Traditionally, Title III has been applied to require businesses to provide equal access to stores, restaurants, and other physical spaces.  As our society has increasingly moved beyond the physical world and into the virtual, however, there has been a growing debate about whether the ADA also applies to our virtual stores, supermarkets, libraries, movie theaters, and other businesses.

The law on the ADA as it applies to the Internet remains unsettled.  Enacted in 1990, the ADA was not drafted with the Internet in mind, and Congress has not amended the ADA to modernize it in that respect. Courts across the country have disagreed on whether the ADA applies to Internet-only businesses, or only to those that also have a physical space.  For example, a federal court in Massachusetts ruled the ADA does apply to Netflix’ streaming service, while federal courts in California disagreed and ruled it does not.  Unfortunately, the United States Department of Justice (the “DOJ”), which is tasked with enforcing the ADA, continues to delay the release of its long-anticipated rulemaking on the topic – most recently pushing back the expected release from June 2015 to April 2016.

The lack of settled law and clear regulations has not stopped the DOJ and other complaining parties from aggressively pursuing claims against businesses that host websites or apps thought to be violating the ADA.  Even if not won outright, these claims can force large settlements, generate hefty legal expenses, and cause significant damage to a business’s reputation.  Until the law is clarified, how are businesses to protect themselves?

Though we do not yet know what the DOJ’s rules will look like, the DOJ has given some clues along the way that should help businesses to avoid being targeted in these suits.  In settlements with businesses alleged to have violated the ADA on the Internet, the DOJ consistently has required that the business comply with the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (“WCAG”).  These guidelines focus on making the Internet more accessible for persons with disabilities, suggesting accommodations such as having text alternatives for non-text content to help hearing-impaired users, being fully navigable by keyboard for physically impaired users who may be unable to use a mouse, and being compatible with ‘screen readers’ for vision-impaired users.  The WCAG sets three levels of conformity – from the lowest at level A to the highest at AAA – and the DOJ has generally required compliance with levels A and AA.

The WCAG are only guidelines, and are not mandatory for private businesses.  Still, they signal what the DOJ views as appropriate and what the DOJ’s rules may ultimately look like. In addition to aiming for WCAG Level AA conformity, the DOJ has also suggested through settlements that it would be reasonable to require businesses to have an executive or employee charged with ensuring WCAG compliance, and to hire independent auditors to conduct periodic evaluations of such WCAG compliance.  Finally, it may also be advisable to train your customer service staff to escalate complaints about website or mobile app inaccessibility so that problems can be remedied quickly.  Whether the ultimate rules look like the WCAG or are different, it is clear that rules are coming.  Taking the above steps may help to protect your business by keeping you ahead of the curve.