MAXBURST, website consultants to Berdon LLP
9.9.20 | Vision 2020
Small and Mid-sized Businesses run a risk of legal action if their websites are not in compliance with the Americans With Disabilities Act.
The landmark Americans With Disabilities Act (ADA) was signed into law by President George H.W. Bush in 1990. The Act mandated equal access to public spaces for people who must deal with physical challenges—such as being confined to a wheelchair. In the years since the act became law, millions of physically challenged Americans have benefitted from the ADA’s mandates for equal access and, just as importantly, opportunities in the workplace.
Yet, because the ADA was passed well before the dawn of the internet revolution, which has reshaped the way we live and work, many businesses have been caught off guard by a spate of recent lawsuits that have taken aim at websites that are said to be non-ADA complaint, in other words, not easily accessed by the visually impaired.
Title III of the Americans with Disabilities Act prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA—including restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation as well as commercial facilities to comply with the ADA Standards.
At the time, this was understood as a mandate to make physical locations of commercial businesses and public spaces accessible to those who may not have been able to access them previously, due to a physical impairment. In 1990, a world where online outlets like Amazon would supplant traditional brick and mortar stores was still a long way off.
An Increase in Lawsuits
Fast forward thirty years, the visually impaired are now finding that some commercial websites are proving difficult to navigate and have taken to the federal courts for redress.
The most well-known case is that of Mr. Guillermo Robles, a blind man who brought suit against Domino’s Pizza after he was unable to order food on Domino’s website and mobile app, even with the assistance of screen reading software. A decision by the 9th U.S. Circuit Court of Appeals said that “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” Domino’s appeal of the 9th Circuit’s decision to the U.S. Supreme Court was denied last October.
The suit brought by Robles is one of over 2,200 suits filed over website accessibility. Overall, similar ADA-related suits are up 300 percent since 2013. Thomas Barton, a labor lawyer at the firm Faegre and Drinker, has warned that “While small businesses have been generally “flying below the radar” because their sites get less traffic, these businesses are equally vulnerable—just as are their physical sites.”
Resources to Help Companies Comply
While the level of risk may vary based on the size and type of the business, all companies that have an online presence should consider taking the necessary steps to ensure full ADA compliance, especially now that the COVID-19 pandemic has resulted in a significant increase in online activity across all business segments.
To assist companies in doing this, there are free tools and easily accessible federal guidelines available that can help mitigate the risk that a business’ website may not be ADA compliant. For example, WAVE, Web Accessibility Evaluation Tool, is a free online resource that helps authors make their web content more accessible to individuals with disabilities. The Bureau of Internet Accessibility is another online resource that has analyzed over 50,000 website with the aim of improving website accessibility. It is also recommended that all businesses consult the ADA Best Practices Tool Kit for State and Local Governments, which lays out in detail the nondiscrimination requirements of Title II of the ADA and discusses what technologies people with disabilities use to access the Internet as well as how poorly designed websites pose barriers to people with disabilities.
To learn more about this topic, please reach out to the Berdon Marketing Team at ContactUs@berdonllp.com.
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