A new lesson in ADA compliance

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In a recent very unscientific poll, I asked business owners and HR professionals if the Americans with Disabilities Act (ADA), and specifically the nondiscrimination requirements of the Act’s Title III, applies to their organization’s website. More than 80 percent said no, or they had no idea. Of the rest, few understood how the ADA applied or knew if their organization’s website was in compliance.

So, what exactly does the ADA have to do with website accessibility? Title III of the ADA prohibits discrimination against individuals with disabilities, including blind and visually impaired individuals, in places of “public accommodation.” Although not explicitly identified as such, the Department of Justice (DOJ) and the courts have interpreted websites to be places of public accommodation and therefore covered under Title III. With the theory proven, the natural consequence ensued: a growing number of lawsuits alleging various websites are inaccessible to blind and visually impaired individuals in violation of Title III.

In 2017, there were 814 Title III website accessibility lawsuits filed in federal court. In 2018, that number rose to 2,258 lawsuits, a 177 percent increase in one year! The top three states for federal website accessibility lawsuits? New York leads the pack with 69 percent (1,564), with Florida a distant second with 26 percent (576), and Pennsylvania coming in third with 2 percent (42). (Surprised California isn’t in the top three? I’ll explain in a minute.) Those may seem like insignificant numbers now, but if these trends continue, in just five years we could see approximately 40,000 Title III website accessibility lawsuits filed.

As for California, although the federal courts there saw plaintiffs file only 10 Title III website accessibility lawsuits in 2018, the trend may be short-lived. On Jan. 15, 2019, the Court of Appeals for the Ninth Circuit revived a 2017 Title III website accessibility case against Domino’s that had been dismissed by a federal district court judge. With that reversal, California federal courts will likely become an attractive venue for these cases, resulting in a dramatic increase in Title III website accessibility lawsuits in California in 2019.

So why don’t businesses just address the issue, follow the rules and ensure their websites comply with the ADA? Because to date there are no rules or required standards to follow. Believe it or not, this is where things get complicated, so let’s take a small step back.

Enacted in 1990, the Americans with Disabilities Act prohibits discrimination and ensures equal opportunity to people with disabilities. This applies to state and local government services, employment, commercial facilities, transportation, and places of public accommodation. These laws can be enforced by the DOJ and through private lawsuits.

In June 2003, the DOJ issued a guidance document on ADA compliance for state and local government websites. In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPR) regarding website accessibility for the disabled, which indicated the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA) — set by the World Wide Web Consortium (W3C), an organization devoted to the development of WWW protocols and guidelines — as the “well-established industry guidelines” for accessible web content. In 2016, the DOJ crushed the can when it withdrew the ANPR replaced it with a notice seeking additional input.

Fast forward to June 2018, when 103 bipartisan members of the House of Representatives delivered a letter to the attorney general requesting the DOJ provide “guidance and clarity with regard to website accessibility under the … ADA.” Then in September, six senators, responding to the surge of ADA website lawsuits, wrote to the attorney general also requesting the DOJ clarify the obligations of businesses regarding ADA website accessibility. Arguing that “[c]larity in the law will encourage private investment in technology and other measures that will improve conditions for the disabled,” the senators added, “[b]usinesses would rather invest in making sure they can serve their disabled customers, instead of pay[ing] money to avoid a shakedown by trial lawyers who do not have the interests of the disabled at heart.” (My trial lawyer friends not included.)

In its Sept. 25 response, the DOJ stated that it continues to evaluate whether issuing specific web accessibility standards is necessary and appropriate. However, the DOJ may have tipped its hand by indicating that rather than issuing specific technical requirements, it may promulgate a standard based on “flexibility.” “Absent the adoption of specific technical requirements for websites through rulemaking…[businesses] have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication … noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”

Seldom a proponent of additional regulatory requirements, it’s excruciatingly difficult for me to say this: The need for the DOJ to promulgate regulations identifying specific technical standards for ADA website compliance is unequivocal. Simply stating that businesses “have flexibility in how to comply” with the ADA’s Title III requirements website accessibility helps no one. I think the District Court said it best in the Domino’s case: “regulations and technical assistance [are] necessary…to determine what obligations a regulated individual or institution must abide by in order to comply with [the ADA].” Anything less simply perpetuates the absurdity of the situation for businesses.

Frank A. Cania is president of HR Compliance Experts LLC in Pittsford, New York. He provides human resource consulting services including workplace investigations, HR audits, harassment prevention training, employee handbooks, and a variety of other HR compliance-related services. He concentrates on Title VII, ADA, FLSA, FMLA, and Form I-9 compliance. Contact him at [email protected].