Absence of U.S. Legislation Contributes to Web accessibility Lawsuits

In the absence of apparent U.S. government regulation or even clear advice, there have been numerous web accessibility lawsuits which simultaneously bring focus on web accessibility and, possibly unfairly and unnecessarily, cost well-intentioned businesses money.

In 2015, there were over 40 web accessibility lawsuits filed against American firms under the Americans with Disabilities Act, according to an article (PDF) published in Bloomberg’s Electronic Commerce and Law Report in November 2015.

Clear Demand for Website Accessibility

There is a definite need to make websites accessible to individuals with disabilities, and the U.S. Department of Justice has done an eloquent job of explaining that need.

Nowadays the net, most especially the websites online, plays a very important role in the everyday personal, professional, and business life of most Americans. Increasingly, private entities of all sorts are providing products and services to the general public through sites that function as places of public accommodation under title III of the ADA [Americans with Disabilities Act]. Many websites of public accommodations, however, render use by individuals with disabilities challenging or impossible due to barriers posed by websites designed without accessible features.

Again according to the U.S. Department of Justice, being not able to access a website, or having difficulty accessing a web site, affects Americans with disabilities, putting these people”in a terrific disadvantage in today’s society, which is driven by a global market and unprecedented access to information.”

The Department of Justice even explicitly addresses ecommerce. “On the fiscal front, electronic trade. . .frequently offers consumers a wider selection and lower prices in comparison with traditional’brick-and-mortar’ storefronts, with the additional benefit of not having to leave one’s home to receive goods and services.”

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The Department of Justice’s announcement makes great sense, and many companies would love to support disabled customers online. From an ethical or adequate business standpoint, there is not any query the web should be accessible for all. Every business should create a plan for internet access.

There can, however, be a challenge defining what it means for a website to be accessible. How, for example, does a company know if its site is, actually, fulfilling a functional or legal definition of accessibility?

Regulatory Gap Fuels Litigation

Notwithstanding publishing an Advanced Notice of Rulemaking in 2010 (PDF) stating that it would establish regulations about web accessibility and the ADA Title III, the U.S. Department of Justice has not given firms, such as online retailers, clear instructions about what should be done in order to comply with the ADA. Furthermore, the U.S. Department of Justice may take until 2018 to actually release regulations that businesses can follow.

Without apparent U.S. Department of Justice information, state and federal courts can and do release contradictory conclusions about what companies should do to make websites accessible in accordance with the ADA and its Title III. These courts could also put the bar, if you will, for web accessibility and ADA Title III compliance as big as they like.

Good Intentions?

This lack of education means — as an extreme example — it is possible that online companies that have followed every best practice and built a website that complies with every single principle from third party organizations like the Internet Consortium could nevertheless be sued or made to cover plaintiffs’ damages. There simply is not a practical definition of ADA web accessibility compliance.

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“Disabilities law experts say the lack of regulations governing site accessibility have encouraged those suits and put businesses in a quandary over what, if anything, they have to be doing to mitigate legal risks in this area,” wrote the author of the above mentioned Electronic Commerce and Law Report article.

Mixed Signals

To make things much worse, according to attorney and ADA law pro Minh N. Vu, the U.S. Department of Justice sends mixed signals about whether sites required to be accessible if accommodations were made.

Moving back to 2010, the Department of Justice”made numerous statements that fairly directed public accommodations to conclude that their websites did not necessarily have to be available provided that the public accommodation provided an equivalent alternative method to get the services and products that were provided on the website. The DOJ’s statements also led public accommodations to believe that following DOJ issues a final regulation, they would have enough time to produce their websites comply with the technical accessibility standard DOJ adopts since law,” Vu wrote in a July 2015 post .

According to Vu, the Department of Justice”stated that’covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible option, such as a staffed phone line, for individuals to get the information, goods, and services of the site. For an entity to fulfill its legal obligation under the ADA, an entity’s alternative must offer an equal quantity of accessibility regarding hours of operations and variety of information, options, and solutions available. By Means of example, a department store that has an inaccessible website which allows clients to get their credit accounts 24 hours a day, 7 days a week so as to check their bills and make payments would have to offer access to the same information and provide the exact same payment options in its own accessible Option.”‘

… the U.S. Department of Justice sends mixed signals about whether sites really needed to be accessible if accommodations were made.

More recently, however, the Department of Justice, according to Vu, has said that a requirement for an available site is present right now and a 24-hour telephone service would not meet the ADA requirement.

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This scenario means that firms should, on the one hand, develop a web access approach, which is ultimately great for customers with disabilities. But those businesses — except for the very smallest businesses, which are exempt from ADA compliance — should also understand that in spite of taking steps toward accommodation, it is still possible to be sued and lose.

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