Is Your Website Discriminatory?

Poorly designed websites can create unnecessary barriers for people with disabilities, just as poorly designed buildings prevent some people from entering. And that could constitute discrimination and a violation of the Americans with Disabilities Act (ADA) and its amendments.

Most employers should know Title I of the ADA, which applies to all employers, public and private, that employ 15 or more individuals. Title I prohibits these employers from discriminating against qualified individuals with disabilities in all aspects of employment.

You might be less familiar with Title III. This section prohibits discrimination on the basis of disability in the activities of places of public accommodations, or businesses that are generally open to the public. Some attorneys and advocates for the disabled have argued—successfully—that websites are “public accommodations” that should be made accessible to individuals with disabilities.

Current State of Law

Title III of the ADA falls under the purview of the U.S. Department of Justice, which offers technical assistance on the ADA Standards for Accessible Design and other ADA provisions applying to businesses, non-profit service agencies, and state and local government programs. It also provides information on how to file ADA complaints.

In 2014, Justice announced its intent to revise the regulation implementing Title III. The proposed regulation will “address the obligations of public accommodations to make the websites they use to provide their goods and services to the public accessible to and usable by individuals with disabilities under the legal framework established by the ADA.” The Justice department specifically cited these types of organizations:

• Businesses that sell goods online
• Schools at all levels that offer programs, instruction and degree programs online
• Social networks and online meeting places
• Businesses that provide entertainment (games and music) and information (news and videos) online.

Although Justice originally said it would develop its regulations by March of 2015, it has not announced regulations as of the time this newsletter went to press. However, that does not mean you shouldn’t pay attention to website accessibility issues.

Penalties

In an early case on website accessibility, in 2010 tax preparer H&R Block agreed to pay $25,000 in civil penalties, plus $5,000 to the complainant. Since then, major organizations, including Harvard and MIT, have faced claims for website accessibility.

In 2014, the maximum civil penalty for a first violation under Title III increased from $55,000 to $75,000; for a subsequent violation the new maximum is $150,000. The new maximums apply only to violations occurring on or after April 28, 2014.

Risk Management

When evaluating your organization’s websites, look for the following problem areas:

1.       Problem: Images without text equivalents. Blind people, those with low vision, and people with other disabilities that affect reading abilities often use screen readers and refreshable Braille displays, which cannot interpret images.

   Solution: Add a text equivalent to every image (alt tag).

2.        Problem: Documents not posted in an accessible format. Some formats, such as PDFs, do not have text equivalents.

   Solution: Post a text equivalent.

3.         Problem: Specifying colors and font sizes. Web designers often specify certain colors or fonts for aesthetic reasons. However, some people might not be able to see certain colors, and others with low vision might need to change a font to make it more readable.

   Solution: Users need to be able to manipulate color and font settings in their web browsers and operating systems in order to make pages readable. For example, designers can specify font sizes in relative terms (small, medium, large), rather than in point sizes.

4.       Problem: Websites increasingly make use of video. However, video might not be accessible to those with vision problems or hearing problems.

   Solution: Provide an audio transcript for video for the vision-impaired, and subtitles for hearing-impaired. Or provide a text transcript that’s translatable by accessibility programs.

A whole profession of evaluating and designing websites for accessibility has emerged. Take a look at your website. Might it need changes? Run it through an accessibility tester to find out. Find a list of online testers at www.w3.org/WAI/ER/tools. You could also hire an expert to evaluate your website and make the changes to make it more accessible. Or you can do nothing, and wait to be sued. Don’t worry, there’s an army of lawyers waiting to file Title III accessibility lawsuits against businesses