Website Accessibility Lawsuits Increasing

A whole subspecialty of law practice is emerging, focusing on website accessibility. That’s bad news for businesses that haven’t ensured their websites are accessible to people with disabilities.

Title III of the Americans with Disabilities Act (ADA) 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.

Violations of Title III can bring a maximum civil penalty of $75,000 for a first violation. For a subsequent violation, the maximum increases to $150,000.

Seyfarth Shaw, LLP, a law firm with offices throughout the U.S., reported that 106 federal website accessibility lawsuits have been filed between the beginning of 2015 and September 21, 2016. Just four industries — retail, restaurants, hospitality and entertainment — have accounted for 95 percent of the cases filed. Retailers have been named in 63 percent of all cases, restaurants in 16 percent, hospitality businesses in 9 percent and entertainment businesses in 7 percent. All other private industries, from academia to dating services to medicine, each account for 2 percent or fewer of all cases.

The message is clear: businesses in high-risk industries should make creating accessible websites a priority. Other industries should also look at their websites, because they are not immune to lawsuit.

Worth noting: For its research, Seyfarth Shaw looked at Title III cases only. Employment discrimination falls under Title I of the ADA; lawsuits against employers using online applications that are inaccessible would not count in this tally. Organizations should also look at any online job applications or screenings to ensure that they are accessible to people with disabilities.

What Makes a Website Accessible?

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

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.

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.

 

For a quick and easy way to evaluate whether your website might pose problems, you can run it through the WAVE Web Accessibility Evaluation Tool, located at http://wave.webaim.org. Simply type in your website’s URL and the tool will point out potential problems.

If your website needs changes, an accessibility expert can help. And if you want to ensure your organization has the right insurance coverage to protect itself from discrimination claims, please contact us.

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Back in 2014, the U.S. Department of Justice, which enforces the ADA, announced that it was developing regulations that would include online and website activity under Title II, which applies to local and state government agencies. Risk managers and other experts in the private sector have been keeping an eye on their development. They know those regulations could provide a model for regulations affecting private entities.

Although the DOJ’s original deadline was March of 2015, it has pushed back implementation. Due to comments received, it pushed back implementation and again extended the public comment period. The latest public comment ended on October 2016, signaling that regulations could be coming soon.