The New ADA Design and Construction Issue: Website Accessibility

by Holland & Knight LLP
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HIGHLIGHTS:

  • The DOJ has indicated that it plans on issuing a separate regulation to address website accessibility. However, no official action has been taken since it first sought comments on its proposal for addressing website accessibility in 2010.
  • Plaintiffs are asserting that the voluntary guidelines established by an international website standards organization are legal requirements, but many courts have been skeptical about website accessibility claims.

A new wave of lawsuits signifies a growing trend in accessible "design and construction" litigation – complaints alleging that websites are inaccessible to persons with disabilities, especially those with visual and hearing impairments.

As most businesses are aware, the Americans with Disabilities Act (ADA), and in many cases, similar state laws, prohibit discrimination on the basis of disability by places of public accommodation. These laws have resulted in countless design and construction lawsuits, many brought by professional plaintiffs and advocacy organizations, concerning whether public accommodations, such as restaurants, movie theaters, schools, day care centers, recreational venues and doctors' offices, are accessible to persons with disabilities.

The ADA, which was signed into law on July 26, 1990, predates the Internet (at least as it exists today), and therefore, the law itself does not specifically address whether websites are even required to be accessible. Likewise, although they were recently updated by the Department of Justice (DOJ), federal regulations implementing the law also do not address website accessibility. Instead, the DOJ has indicated that it plans on issuing a separate regulation to address website accessibility. However, the rulemaking process has been delayed multiple times, and the agency has not taken any official action on the issue since it first sought comments on its proposal for addressing website accessibility in 2010.

In the absence of a regulation addressing website accessibility, plaintiffs have nonetheless filed complaints against a wide range of businesses, including retailers and popular online shopping sites, alleging that their inaccessible websites violate the ADA and similar state laws by denying persons with disabilities "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." Foreshadowing this trend, one highly litigious advocacy group asserted:

[T]he courts need to honor the ADA by upholding its general legislative principles, even where the regulations are lacking. In 1990, the internet hardly existed; today, it's a primary form of communication, facilitating job applications, banking, shopping, and social networking. It's time to recognize that the Internet is a public accommodation that needs to comply with the ADA.

The ADA allows plaintiffs to recover their attorneys' fees, and similar state laws, such as the California Unruh Civil Rights Act, provide for both attorneys' fees and statutory minimum damages for each violation of the act. These provisions serve as a key driver for many plaintiffs pursuing accessibility litigation.

In order to make their case without statutory or regulatory authority, plaintiffs are asserting that the voluntary guidelines established by an international website standards organization are legal requirements. These guidelines recommend the following (non-exclusive) accessibility features:

  • adding invisible alternative text to graphics
  • ensuring that all functions can be performed using a keyboard and not just a mouse
  • ensuring that image maps are accessible
  • adding headings so that visually-impaired people can easily navigate the site

In similar design and construction cases, plaintiffs' groups and the DOJ's Civil Rights Division have also aggressively attempted to impose voluntary guidelines as legal requirements.

Many courts have been skeptical about website accessibility claims (especially where the websites are not connected or related to any physical location). This skepticism is reasonable, especially given that there is no established legal standard for defining an accessible website. However, some courts have allowed these cases to proceed, and many businesses have negotiated settlements in which they agree to conform their websites to voluntary international guidelines for website accessibility.

With media coverage of these and other lawsuits, and the anticipated release of new regulations governing website accessibility, an increase is expected in the number of similar lawsuits filed with aggressive advocates seeking to impose through settlement agreements more than is legally required.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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