There’s no clear legal requirement yet, but disability-rights groups are increasingly targeting Internet sites for failure to accommodate individuals with disabilities, particularly with respect to vision and hearing impairments. Before you or your client come under fire, consider making some changes that will make your website more accessible now.
Title III of the Americans with Disabilities Act of 1990 (ADA) (42 USC §§12101–12213) prohibits discrimination against an individual based on disability with regard to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation. The threshold issue addressed in any Title III website accessibility case is whether a website is or is not a “place of public accommodation.” California statutes that offer protection to disabled persons (the Unruh Civil Rights Act (CC §§51–52.3) and the California Disabled Persons Act (CC §55.32)) rely on a violation of the ADA, but both are broader than the ADA in that they’re not limited to places of public accommodation.
The Ninth Circuit cases have uniformly held that websites that aren’t connected to an actual physical place aren’t places of “public accommodation” and therefore not subject to the ADA. But other courts outside California have been more open to classifying websites as subject to the ADA. See e.g., Doe v Mutual of Omaha Ins. Co. (7th Cir 1999) 179 F3d 557; National Fed. of the Blind v Scribd Inc. (D Vt 2015) 97 F Supp 3d 56.
The U.S. Department of Justice (DOJ) has added to the confusion. The DOJ’s regulations under the ADA focus to some extent on technology-driven auxiliary aids and services that could be used in the context of web accessibility, but the DOJ hasn’t issued any clear guidance on what specific web accessibility requirements must be met to comply with public accommodation laws.
Given the unsettled and often conflicting state of the law on web accessibility, California businesses may struggle to determine what concrete steps to take to address these issues. Luckily, there’s some guidance out there in the form of W3C’s Web Content Accessibility Guidelines (WCAG) 2.0. WCAG is a set of technical standards developed by individuals and organizations around the world to provide a standardized set of rules for web content accessibility.
Consider whether your website meets these WCAG guidelines:
- Provide text alternatives for any non-text content, so that it can easily be modified to suit various needs, such as braille, large print, speech, symbols, or simpler language;
- Include captions in video content;
- Create content that can be presented in different ways (e.g., with a simpler layout) without losing information or structure;
- Make it easier for users to see and hear content by, among other things, separating foreground from background;
- Make web pages appear and operate in predictable ways;
- Maximize compatibility with assistive technologies on user computers and devices;
- Don’t design content in a way that’s known to cause seizures; and
- Provide input assistance to help users avoid and correct mistakes.
Regardless of whether it’s legally mandated now, you and your clients should be aware of the issues around accessibility of public websites and take steps to determine whether any modifications are needed to mitigate the risk of litigation. And regardless of legal requirements, if the goal is to bring as many members of the public to your website, then maximal accessibility should be a priority.
Learn much more about these issues in Website Accessibility Issues for California-Based Companies by Michelle Barrett Falconer and Lisa Lin Garcia in the Fall 2017 issue of CEB’s California Business Law Practitioner. For more on legal issues relating to website development, turn to CEB’s Internet Law and Practice in California, chap 5.
Other CEBblog™ posts you may find useful:
- Before You Get a Website, Get a Development Agreement
- 6 Tips for Ensuring an Enforceable Clickwrap Agreement
- Should Your Client Consider E-Commerce or Cyber Liability Insurance?
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