Is your website covered by the Americans with Disabilities Act? The short answer is: possibly. This area of the law continues to evolve, with differences from jurisdiction to jurisdiction based on the type of website. But make no mistake: lawsuits alleging lack of website accessibility are hot. The most common allegation is that the company website is inaccessible to visually-impaired customers, although some cases now involve mobile apps. Such customers often rely on screen-reader software like JAWS or NVDA to interact with and access a site’s content. If the website is not compatible with this or similar screen-reader technology, most visually-impaired customers will not be able to use the website.
Companies seeking to navigate these issues should start by addressing two basic questions: (1) Does your website engage in commercial activity for the benefit of the general public; and if so (2) Will the law treat your website as a public accommodation, or the service of a public accommodation? If your website sells goods or services directly to the public, or if it engages in sufficient commercial activity, it may be covered as a “sales” or “service” establishment under the ADA. If it is covered, many jurisdictions will require you to provide a website that is accessible to visually-impaired consumers and other individuals with disabilities, particularly if your website has a “nexus” to the goods or services sold out of a brick-and-mortar store.
Bringing Your Company Website into Compliance with the ADA
What should you do if you determine that your company website may be subject to the ADA? Different situations may call for a different response. Consider the ways that you might make your website more accessible to consumers with disabilities. For some businesses, in some industries, this may mean complying with some or all of the Web Content Accessibility Guidelines (WCAG) 2.0. These guidelines are published by the World Wide Web Consortium (W3C) and are widely accepted as an industry standard for website accessibility, although no law yet requires private businesses to comply with them. There also appears to be an increasing expectation that your website should be compatible with screen reader technology such as JAWS or NVDA. This may require the services of an accessibility consultant who can make the necessary modifications to your website's source code.
There are shorter-term steps that may minimize your risk of liability. You may be able to implement a temporary workaround, like a 24-hour hotline or remote assistance for consumers with disabilities. You might make your website's services, such as coupons or membership savings or loyalty programs, available via alternative means. This may require you to train key staff to be able to address disability-related questions and requests. Perhaps your company can set up a committee tasked with implementing these accessibility modifications, and involve individuals with disabilities in the process. The idea is to show your company's commitment to solving accessibility issues in the interim while your website developer or consultant makes the necessary modifications. Experienced counsel, working in conjunction with the right accessibility expert, can guide you toward efficient, effective solutions that will maximize your business opportunities while minimizing your risk of legal liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
