Recently we have heard of member companies being targeted by attorneys representing individuals who claim to have been disadvantaged because of a disability and the inability to read a website.
Websites are an important tool in promoting your business. However, your website may also leave your business exposed to litigation under the Americans with Disabilities Act if the website is not accessible to persons with disabilities.
With websites as storefronts becoming more prevalent, so are legal action threats as customers complain that websites are not ADA compliant.
While the ADA does not mention websites anywhere, Title III of the ADA, which covers public accommodations, has been interpreted by U.S. courts to apply to websites.
Working with our staff and our general counsel, we have put the following document together to help you better understand the issue and some of the steps that you can take to help you avoid being targeted by attorneys.
What Does This Mean?
Websites need to be readable and usable to the visually impaired and those with other disabilities. The U.S. Court of Appeals for the Ninth Circuit recently held that the Trump Administration’s withdrawal of notice of proposed rulemaking that was expected to establish standards for websites did not negate businesses’ obligation to maintain accessible websites under the ADA, even if the lack of regulations meant that businesses lack specific technical guidance. The ADA permits private lawsuits to enforce a plaintiff’s rights, and while a plaintiff may not recover damages under Title III, injunctions, attorney’s fees and costs may be awarded to a prevailing plaintiff. Some states also have their statutory and regulatory requirements for accessible public accommodations.
One primary issue is whether a website provides “full and equal enjoyment” of its features to individuals with disabilities. In a 2018 decision in Thurston v. Midvale Corp., a California state court judge granted summary judgment to a plaintiff suing under the ADA because she was unable to access content on a company’s website. The court rejected the defendant’s argument that it was enough to provide an email address or a phone number to connect those unable to navigate the website to its customer service representatives. The court noted that those measures “impos[e] a burden on the visually impaired to wait for a response via email or call during business hours rather than have access via Defendant’s website as other sighted customers. Thus, the email and telephone options do not provide effective communication ‘in a timely manner’ nor do they protect the independence of the visually impaired.”
Some Tips to Help Make Your Website ADA Friendly
Produced by the World Wide Web Consortium, an international community of web developers and users, the Web Content Accessibility Guidelines (WCAG) lay out four principles for website accessibility. The guidelines recommend that all websites be:
- Perceivable
- Operable
- Understandable
- Robust
Perceivable means that the information and content are presented and available to everyone, including persons with disabilities.
Operable means that the website interface does not require interaction that persons with disabilities cannot perform.
Understandable means that both the information and operation of the user interface must be readily understandable to everyone (make everything simple, provide clear instructions).
Robust means that your website is accessible through a wide variety of user agents and technologies such as various screen readers and browsers. For example, you can’t just have an accessible website in Explorer, but not Chrome.
Here is a checklist of how you can make your websites more accessible:
1. Provide Alternatives
- Alt Text: Add alt text to all meaningful images on your website (this explains what the picture is).
- Closed Captioning: All videos on your website must have closed captioning.
- Text Transcripts: Add a text transcript beneath all video-only and audio-only files.
- No Images of Text: All text must be readable by a screen reader.
- Accessibility App: Encourage those in need to download the eSSENTIAL Accessibility™ app.
2. Limited or No Automatic Content
WCAG does give you option of having pop-ups, scrolling, and blinking content so long as you give the user the ability to pause, stop, or hide them.
Static Website Forms: Forms must be fully controllable by the user.
3. Keyboard Accessible
Your website must be fully accessible without a mouse, by using the arrow or tab buttons. (If you can unplug your mouse and still completely access and engage with your site, you’re in good shape.)
4. Intuitive Website
- Language and Title Tags: Set a language for your website and provide clear titles for each page.
- Skip to Content: Users must be able to skip straight to the heart of your content.
- Consistent Navigation and Flow: Your overall website and each page needs to be predictable and logical. Same format, different content.
- Descriptive Links and Headers: Be obvious in linking to or setting up content so that users know what to expect. In other words, be very obvious in wording your headers, and anchor text surrounding your links
- Labeled Elements: Put a label on input fields and enough instructions so that users know what they are being asked for.
- Multiple Ways to Access Content: Provide multiple ways to navigate through your website.
- Clear Forms: Make forms simple and easy to fill out.
- Clean Code: Your website must be coded properly and free of errors.
5. Font Thresholds
- Color Ratio: All fonts should sharply contrast from their background color at a 4.5:1 minimum threshold.
- Scalable: Text should be able to be resized up to 200 percent without any loss of functionality.
6. Only Necessary Time Limits
- There should be no time constraints on website access unless absolutely necessary.
The most common complaint in demand letters and lawsuits is a very easy one to fix: alt text.
With alt text, you’re just changing the value of your alt tags to convey what an image represents.
Another issue is having closed captioning on your videos. If you have your videos hosted on YouTube, adding closed captions is fairly easy to do.
These are two very simple, yet very big, steps towards becoming ADA accessible.
Remember, updating your website to become ADA compliant is a process, not a flip of a switch so the best way to become compliant is to start doing what you can and not get caught in planning and procrastination mode.
Suggested Next Steps
If you want to ensure that your website is ADA compliant or at the very least as accessible as possible, you should contact your web developer and have them run an audit on your website and give you actionable steps to help ensure your website is compliant. If you have received any communications threatening a lawsuit, you should contact your attorney immediately.
You should consider giving those who have accessibility issues the option of downloading the eSSENTIAL Accessibility™ app, which can help them access your site better.
*The information in this email is NOT legal advice nor should it be taken as such. It is not intended to be a comprehensive or exhaustive discussion of all issues that might arise with a company’s website. This is merely a helpful reminder that you should ensure your website is as ADA compliant as possible.