Wednesday, March 1, 2017

The ADA in the digital age: Is your website compliant?

The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in all aspects of society. Whether, under the ADA, websites must be accessible to people with disabilities has been a hot topic in the legal and disability communities for some time. Before the internet became so pervasive, it was assumed that the ADA applied only to physical structures. But because the law doesn’t specifically state whether it applies to brick-and-mortar vs. digital “places,” its applicability to websites has been open to interpretation. 

A string of lawsuits brought against private companies for inaccessible websites, web services, or digital communications, has created a precedent that the ADA does apply to the internet, although the precedent is not entirely consistent across all jurisdictions.

An individual with a disability is defined by the ADA as: 

  • a person who has a physical or mental impairment that substantially limits one or more major life activities, 
  • a person who has a history or record of such an impairment, or 
  • a person who is perceived by others as having such an impairment. 

The ADA does not specifically name all of the impairments that are covered, but the types of disabilities covered under the ADA can be physical (i.e. muscular dystrophy, dwarfism, etc.), sensory (i.e. blindness, deafness, deaf-blindness), or cognitive (i.e. Down Syndrome). In 2008, the ADA broadened the scope of how disability is legally defined to include psychological, emotional, and physiological conditions.

The ADA consists of five sections overseeing different aspects of how an individual engages with society:

  • Title I: Employment; 
  • Title II: Public Entities; 
  • Title III: Public Accommodations; 
  • Title IV: Telecommunications; and 
  • Title V: Miscellaneous Provisions. 

Despite the ADA’s broad proclamation against discrimination, it is silent about its application to the Internet (not surprising given that the ADA was passed before the Internet we know existed). 

The majority of cases involving the ADA and website compliance arise under Title III of the ADA, and most of those cases turn on whether the website at issue is a place of public accommodation. 
The federal courts are split on two issues: (1) the threshold issue as to whether the ADA applies to websites at all, and (2) a second issue relating to the degree in which the ADA applies to websites. Some courts have applied the ADA only to websites that have a physical connection to goods and services available at a physical store or location, while others have applied to ADA more broadly to include even websites that lack a connection to physical space.

Despite the split, it is clear that the tide is moving toward requiring ADA compliance for websites. The Department of Justice (“DOJ”), the agency in charge of creating rules to implement Title III of the ADA, has made clear that it interprets the ADA to apply to websites. In 2010, the DOJ released advanced notice of proposed rulemaking seeking comments on website accessibility requirements under the ADA. Since 2010, the DOJ has been promising to revisit the issue to provide clarity on how the ADA applies to the Internet. The DOJ has delayed issuing regulations until at least 2018, but has suggested through a Statement of Interest (filed in a lawsuit by the National Association of the Deaf against Harvard University)) that not only does it intend to require website accessibility, but also it believes the obligation already exists under the language of the ADA. 

Through settlement agreements and consent decrees in various disputes, the DOJ has applied certain guidelines it believes would satisfy the ADA. Specifically, it has relied upon the Web Content Accessibility Guidelines (“WCAG”) 2.0, which are guidelines issued by the World Wide Web Consortium, a non-profit dedicated to promoting international standards for the internet.

Though the official announcement is yet to come, the DOJ has already stated its intent to explicitly require the ADA’s application to websites. It is difficult to know how the new administration in Washington might have an impact on these matters, but it is likely a good time for all enterprises to proactively plan and prepare for the impending legal requirements. Many of our clients, including the entrepreneurial ones, have found it useful for us to help connect them with third-party engineers and technologists.  

If you haven’t begun considering these issues yet, it may be time to at least put it onto your likely already long entrepreneurial enterprise “to do” list… 

No comments :

Post a Comment