ADA Website Compliance – Is It Necessary

ADA Website Compliance
As you probably know, the American Disabilities Act enforces handicapped and disabled individuals right to appropriate accommodation such as braille lettering on signs or handicap parking spaces. ADA compliance is mandatory for physical locations, but what about ADA Website Compliance?

There are currently no official guidelines for ADA website compliance. That doesn’t mean you can’t be sued. Websites can and do get sued for inadequate accommodation for those with disabilities. Such was the case when Scribd settled a lawsuit filed by the National Federation of the Blind. But if there are no official guidelines yet for ADA law as it pertains to websites, how did that even happen?

In order for a private claim to be stated under the disability act, plaintiffs must allege the following three things:
  • They are disabled as recognized the American Disability Act
  • The defendant operates, owns, or leases the “place of public accommodation” in question
  • The defendant denied the plaintiff equal opportunity to the services the defendant offers
A “place of public accommodation” is ambiguous, and thus there is some debate about what constitutes this term other than the 12 examples described in the statute. This lack of specificity has resulted in three different legal approaches to whether or not a website can be considered “public accommodation.”

This term from the statute often attributed to include websites is “other sales or rental establishment.” Since these regulations were established in 1988, there has not yet been any kind of amendment to clarify this clause or add on to it.

Three Different Legal Approaches to ADA Website Compliance

  • Depending on the location in which the supposed violation took place, American courts have taken three separate positions so far. Some have ruled that ADA law only applies to physical establishments and never to websites. Over time this will most likely not be the case anymore.
  • Others have ruled that if the website represents a physical establishment, such as a shop, the owner must adhere to the ADA. Home Depot and Target were both sued using this interpretation.
  • The last approach is that all commercial websites must comply no matter what. This approach is supported by the claim that the purpose of American with Disabilities Act is to give those with disabilities equal opportunity for doing business.

  • What Happens if You Get Sued for Failure to Comply?

    Private ADA lawsuits may result in an injunction to comply, but will not likely result in any fees in addition to hiring an attorney. However, if the Department of Justice files suit, fines and other penalties may be enforced. Suits over ADA compliance for websites matter are becoming more and more common, but a large percentage of commercial websites still do not offer accessibility.

    When Will the ADA Include Proper Definitions for Website Compliance?

    ADA website compliance is expected to be mandatory for all commercial sites at some point in the future. The ADA claims to have official definitions for website compliance in 2018, but considering that these new regulations have been in the works since 2010, there is a high chance that the ADA will fail to provide these guidelines by that time. Many government sites currently use some method to make their site accessible for vision and hearing impaired visitors.

    What Other Guidelines You Can Use?

    Although there is currently no way to be entirely ADA compliant until some specific guidelines are made, most sites looking to accommodate disabled or impaired visitors use the Website Content Accessibility Guidelines (WCAG) 2.0, Levels A and AA. Many prominent groups involved in assisting American disabled people with these kinds of matters recommend this guide.

    These guidelines require sites to incorporate software that can be used by the vision and hearing impaired. ‘Alt-text’ for example uses a screen reading technology that automatically dictates text. It’s possible to check the current accessibility status of your website according to the Web Accessibility Evaluation Tool. This will give you a good idea of where you stand and how well protected you are from legal action.

    The WordPress Accessibility Plugin

    If you are using WordPress as your base software or are planning on switching to it, you can use their convenient accessibility plugin. This simple plugin is based only on public opinion, but it does a good job of identifying deficiencies, which can easily be changed to accommodate the impaired using the accessibility options that WordPress already has. WordPress even has themes designated as ‘accessibility-ready’ with tags. Since 25% of websites on the internet today currently run on WordPress, these measures will make it much easier for many site owners to observe ADA website compliance when the time actually comes.

    In February 2018, Amazon launched its Polly WordPress Plugin. Amazon’s Polly text-to-speech service has been around for a while. It offers over 40 voice options and supports at least 24 languages. It uses machine learning to deliver more life-like speech than more basic text-to-speech technologies. The launch of the WordPress plugin allows WordPress users to generate an audio feed for text-based content for each website post. One can then insert the audio into an embedded player, increasing the accessibility of any WordPress site. The plugin itself is free. However, charges are calculated based on the number of characters requested. While the technology for this text-to-speech plugin is still fairly new, Amazon’s Polly for WordPress is currently available for use.

    Be Careful About Stating ADA Website Compliance

    If you state somewhere on your website ADA website compliant , or any other kind of guarantee for that matter, that is a legally binding contract that can be used against you in a court of law. If you are in fact compliant when the time comes and you wish to let visitors know, there should be no problem, as long as you actually are compliant. If you weren’t aware that in some way you were not compliant, you’d be at risk of legal action. If you have not stated your compliance of the American Disability Act or any other regulations, you have a certain level of protection.

    Be Wary of Any Solicitor Citing a Lack of ADA Compliance

    There are no official guidelines for websites pertaining to the disability act, so therefore, it is impossible to identify a website as being compliant or not. Anyone contacting you citing ADA law may be trying to sell you something. Having accessibility for your site is a good thing, but depending on your website, it might not be completely necessary for quite some time, if ever.

    How Much of a Risk is it Not to Include Accessibility?

    The American with Disabilities Act may incorporate a clause or section dedicated to websites more specifically sometime soon, but things have been the way they are now for quite some time. Lawsuits are on the rise, so being safe is a good idea. On the other hand, you ought to make the decision of whether or not to make your site more accessible based on the factors that are most relevant to your situation. You may be able to find out what other site owners in your area are doing about it and figure out how important it currently is for your industry to have an accessible website. Calculating your risk of legal action if possible should dictate your decision if nothing else.

    Figuring out whether or not your site really needs to adhere to some kind of guidelines for the time being, such as WCAG 2.0, may not be simple; but if you are using WordPress, the plugin they offer is easy enough to use without spending an overwhelming amount of time or money implementing it. This of course depends on your website, but it shouldn’t take long and your web designer should be willing to help. If you are not using WordPress, things may get a little more complicated. Regardless of what kind of website you have, it’s always a good thing to have accommodations for the impaired if you can afford it.

    Update – August 2017

    A verdict on ADA compliance in a court case filed by Juan Carlos Gil against Winn-Dixie Stores Inc. (case no. 16-23020) has been reached, and will most likely set precedence for rulings in similar cases. The ruling in this case may only currently apply to areas within the same jurisdiction, but it can be expected that other jurisdictions will follow the same ruling that has been established in this case for the first time ever.

    Juan Carlos Gil, who has cerebral palsy and is legally blind, claimed that he didn’t have “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” without the aid of an on-screen reading system for Winn-Dixie’s website. As only one of roughly 70 websites the he has sued, Gil is continuing to play a major role in the shaping of ADA compliance practices for business’ websites.

    As this is such an important case in determining the future of ADA compliance rulings, here’s a brief overview of the details:

    JAWS Screen Reader, Gil’s assisting software, was unable to access the majority of Winn-Dixie’s newly redesigned website. Experts confirmed this during the trial, and instead of arguing for the compatibility of the website and against Gil’s software, they chose to take the stance that their website was not “a place of public accommodation.” The presiding judge ruled that there is still a very close connection between Winn-Dixie’s physical stores and the website.

    Winn-Dixie was given a three-year injunction in which they must overhaul their already recently redesigned website. Gil wasn’t compensated beyond the attorney fees, but his case was successful in forcing Winn-Dixie to make major changes to their site and costing them greatly in attorney fees for both sides, redesign expenses, new staff training protocols for accessibility, and more.

    All information in this blog post was accurate as of 08/23/17. If you have any questions, please feel free to contact CourseVector.

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