Employers are getting sued under the Americans with Disabilities Act (ADA) because their websites are not accessible for individuals with visual disabilities. Even though the deadline for creating accessibility standards under the ADA has been pushed back to 2018, private businesses are now at risk if they have not yet taken measures to ensure that their websites can be accessed by everyone.
What happened?
This spring a blind man in California successfully argued that a Colorado-based luggage retailer failed to make its commercial website accessible to the visually impaired which was in violation of the ADA and a California disability law. In that case- Davis v. BMI/BND Travelware- the court granted judgment to Davis (the plaintiff) finding that he “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by Defendant because of his disability.”
This decision is noteworthy because in addition to holding that the retailer’s website is subject to accessibility obligations under Title III of the ADA and awarding $4,000 in damages under state law, the court also required the retailer to take specific affirmative steps to modify its website to achieve compliance. The court also noted that the retailer had not offered any argument indicating that such modifications would not be feasible. As a side note, Title III covers public accommodations including, but not limited to, retailers, restaurants, hotels, theaters and entertainment venues, medical offices, and other service establishments.
Employment Practice Issues
Some blogs and articles have opined that accessibility of websites also affects employment practices as well. For example, many employers often utilize online employment applications. If an employer’s online application is inaccessible, that presents an ADA situation since the application process excludes individuals with disabilities from seeking employment. The Department of Labor’s Office of Disability Employment Policy has created a free online tool called “Talent Works” that will provide assistance to employers to ensure that their online applications for employment are accessible for individuals with disabilities.
Looking Ahead
Businesses thought they had until 2018 to comply with the ADA website accessibility standards. Moreover, the Department of Justice has repeatedly delayed the release of proposed guidance/regulations governing the accessibility of online content for places of public accommodation under Title III. That means businesses have little or no direction as to how to proceed with respect to ADA website compliance nor do businesses know the minimum standards required to achieve accessibility under the ADA. All that is presently known is that the final regulations will adopt some or all of what is referred to as the Web Consent Accessibility Guidelines. These guidelines are the dominant industry standard for website accessibility and set forth a detailed framework of technical methods to satisfy accessibility criteria for individuals with disabilities.
What this all means is that employers who maintain websites have additional compliance matters they must undertake. There are ADA risks that come with maintaining a website; specifically your website must meet generally recognized standards of accessibility for individuals with both visual and other types of disabilities. You will want to seek out the necessary assistance to determine what barriers or obstacles, if any, disabled individuals have with accessing your company website and you will also want to review your current web content in conjunction with these WCAG guidelines and the government regulations, whenever they come out.
