Before answering that question, manufacturers should ask whether the they host a website where individuals can access information about products and services, view demonstrations, submit requests for price quotes or apply for a job.  If so, then the website may not be handicap accessible.

Title III of Americans with Disabilities Act (“ADA”) requires goods, services, privileges or activities provided by places of public accommodation be equally accessible to people with disabilities.  Title I of ADA prohibits discrimination against persons with disabilities with respect to hiring decisions.  For over 20 years, the United States Department of Justice (“DOJ”) has taken position that company websites must be accessible to persons with disabilities.

While these ADA mandates have been on the books for many years, there remains no single Federal standard for determining whether a website is sufficiently accessible.  The World Wide Web Consortium has promulgated voluntary guidelines (web content accessibility guidelines or “WCAG” for short), which have evolved over time.  In 2018, the current standard (WCAG 2.1) was published.  These voluntary guidelines have not be universally adopted.

Planned regulations by the Obama Administration were withdrawn by DOJ following President Trump’s executive order seeking to reduce federal regulations.  But the absence of a federal standard may do more harm than good.  In the first six months of 2018, one author counted over 1,000 lawsuits challenging the accessibility of business websites (over 600 of these lawsuits were filed in New York alone).

In September 2018, in response to congressional inquiries, the DOJ published a letter regarding website accessibility.   In the DOJ’s response, the DOJ asserted that:

• DOJ has long held websites must be accessible to persons with disabilities.
• Places of public accommodation have flexibility as to how to comply with ADA’s requirements for nondiscrimination and effective communication.
• Failure to comply with a specific voluntary technical standard for website accessibility does not necessarily indicated non-compliance with ADA.
• Congress has the ability to provide greater clarity through legislative process.

As several cases work their way through appellate review, the absence of any clear standard likely means manufacturers will face the risk of legal challenge based on inaccessible websites.  The Manufacturing Law Blog will continue to watch and report on these developments.

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