By Eric Wokas, Risk Control Consultant
Title III of the Americans with Disabilities Act (ADA) prohibits any “public accommodation” from denying “full and equal enjoyment” of its services or facilities on the basis of a disability.
To file an ADA claim, a plaintiff must establish (1) that he or she is disabled; (2) that the defendant owns, leases, or operates a place of public accommodation; and (3) that the defendant denied the plaintiff—on the basis of the disability—full and equal enjoyment of the premises. In addition, the plaintiff must have personally encountered the barrier complained of or must have been deterred from visiting the public accommodation as a result of the barrier.itle III of the Americans with Disabilities Act (ADA) prohibits any “public accommodation” from denying “full and equal enjoyment” of its services or facilities on the basis of a disability.
Since the ADA was passed before the internet boom, there is no exact language requiring website or digital access, but there are many lawsuits now alleging a violation of the ADA due to “the inability of a disabled person to use a website thus impeding access to enjoy a physical location.” These claims often imply that the US Department of Justice (DOJ) has established firm guidelines for ADA website or app compliance. This is false and misleading. Nevertheless, plaintiff attorneys continue to file claims since there is a one-sided attorney’s fee provision where only the plaintiff (but not the defendant) can get attorney fees paid by the losing side. These provisions present the opportunity for abuse and often results in bad consequences due to a “no-lose” situation for the plaintiff even when their case is weak.
Even though the DOJ has not issued specific and binding website accessibility regulations that govern ADA violations, courts have consistently ruled that the ADA requires commercial websites to be accessible to disabled users. Thus, at minimum, it is prudent to make your website accessible to persons with disabilities and it is a good business practice as well.
Since no formal government standards exist for private websites, a consortium of international web innovators called World Wide Web Consortium (W3C) has created a series of web content accessibility guidelines (WCAG) that serve as standards website developers need to follow to ensure that all Americans can access websites more easily.
The WCAG summarizes its requirements into four main parts, called POUR:
All website owners should offer their users information and user interfaces in an easily perceivable manner. Moreover, they must provide text alternatives for nontext content such as images, voice, and videos. They must also offer captions or text summaries for audio and video content. Being perceivable also requires that the content should be easy to identify programmatically. This includes ease of listening and reading that features good contrast and easy volume controls.
This requirement means every user interface component and navigation needs to be easy to operate. For example, the interfaces must include keyboard usage. Moreover, users should have enough time to read content and perform necessary tasks. Also, website owners need to avoid creating and uploading content that could cause seizure among users.
All information and user interface operations should be easy to understand. The interface has to assist users to avoid and rectify mistakes when entering input. Lastly, the interface and content should function predictably to enhance reliability.
The WCAG require all content to be robust enough to allow various user agents, such as assistive technology, to interpret it easily. The content must also be accessible to every user and remain abreast with technological advancements such as mobile tech. Finally, the content and website must offer utmost compatibility with most, if not all, web browsers.
As an alternative, according to the Department of Justice, any business that has an inaccessible website can also comply with the ADA by providing an accessible option, such as a staffed telephone information line, for individuals to enjoy its goods or services.
For more guidance on making your website ADA compliant, contact us today.