Most websites built today are designed to be easily accessible to the masses, but how many businesses think ahead and design their websites based on web accessibility for the disabled? Experts estimate that approximately 85% of websites are fully accessible to people with disabilities like deafness and blindness. Some businesses, specifically those who operate e-commerce stores that solely exist within their own small corner of the internet, might assume that they’re free and clear from the accessibility guidelines of the Americans with Disabilities Act, but recent lawsuits prove otherwise.
Why are e-commerce websites sued for web accessibility?
The applicability of the Americans with Disabilities Act has been a rising issue, affecting several businesses since its enactment. Recently, disabled individuals, with the backing of various advocacy groups, are suing because of the lack of access to websites. Unfortunately, there is a lack of guidance from a regulations standpoint about what makes a website accessible to someone with disabilities, and the court system has done little to minimize the confusion.
Without federal regulations in place, how can a business be sued for non-compliance? Any person with a disability can sue and rely upon the accessibility provisions of the ADA. Such suits typically allege that the disabled individuals was denied full and equal access to the goods and services offered within the “place of public accommodation.” This then begs the question – what is a “place of public accommodation”?
Are websites “places of public accommodation?”
What determines whether or not a website or mobile application should be web accessible to those with disabilities? There has been an ongoing argument over whether a website is a place of public accommodation – a determining factor whether a business should adhere to the ADA guidelines. Generally, a place of public accommodation is a place or business that is open to the public and fall under one of the 12 categories listed in the Americans with Disabilities Act, such as: restaurants, retail stores, hotels, theaters, doctor’s offices, pharmacies, museums, libraries, parks, private schools, and day care centers. This means that websites that offer goods and services online and have a physical place may be on the hook to making their website accessible to those with disabilities.
However, a significant grey area exists concerning those businesses that do NOT have a physical location and exist solely on the web. However, some courts ruled that even without a physical, brick and mortar location, e-commerce businesses that sell goods and services through a website may run afoul of the ADA if their sites are not accessible by those with disabilities.
The standard for what is “accessible” under the ADA remains unsettled. There are no current laws or regulations defining what is required, and the Trump administration recently announced yet another delay concerning the publication of guidelines. There are, however, voluntary guidelines developed by W3C, an international consortium that develops web standards. The most recent version is the web content accessibility guidelines.
What will the courts determine?
The lack of formal rules and guidelines concerning website accessibility has not stopped private litigants, their lawyers, or the Department of Justice from attempting to enforce the ADA against businesses that are transacting business through websites and mobile applications. The most common targets remain online retailers who also have a brick and mortar location.
Some courts have held that websites and mobile applications are in fact places of public accommodation under the ADA and some courts have ruled otherwise. The Third, Ninth, and Eleventh Circuit Courts apply that the ADA only to websites that have a connection to goods and services available at a physical location, such as a retail store. However, the First, Second and Seventh Circuit Courts apply the ADA more broadly to include all websites that offer direct sale of goods or services, even those that lack a connection to physical space. Meanwhile, the Fifth Circuit, the Federal Court of Appeals that covers Texas, has yet to weigh-in on this issue.
However, because web-based businesses can be sued anywhere where they are regularly doing business, in this case taking orders from customers, litigants will forum shop in an effort to find the forum which has the most favorable law to them. For e-commerce, this means that many businesses could face a lawsuit in any of the 50 states. For any business operating online, especially small businesses, this is a scary thought. However, there are ways to minimize the potential exposure and limit where you can be sued.
What can your business do to prevent potential lawsuits and litigation?
For one, waiting until the new guidelines are published in 2018 could be a fatal choice for your business. Not only is there a possibility that the guidelines could be pushed out even further, but in recent months, law firms representing private litigants have become increasingly aggressive in pursuing retailers regarding web accessibility.
More importantly, businesses are missing out on the opportunity to reach additional audiences by ensuring their website is ADA accessible. It would be wise for businesses to evaluate the costs and potential benefits of incorporating website accessibility designs sooner, rather than later, especially if a website or mobile application revamp is in the near-future of your business plans. Some resources for web accessibility can be found below.
Common barriers to web accessibility include:
- Incompatibility with speech recognition or screen reading software
- Lack of text-based alternatives to media content
- Poor color contrast or small text size
- Transaction timing requirements that do not take into account intellectual disabilities
What does it mean to have an accessible website?
- Provide text alternatives for non-text content
- Provide alternatives for time-based media
- Include content that can be presented in different ways without losing information or structure
- Content of website is easy to see and hear, including separating the foreground from the background
- Permit all functionality from a keyboard if needed – as opposed to cursor, because some with motor function disability may have trouble using a cursor
- Permit sufficient time to read and use content
- Avoid design functions that are known to cause seizures
- Includes ways to help users navigate, find content, and determine where they are
- Includes text content that is readable and understandable
- Operates and appears in predictable ways
- Helps users avoid and correct mistakes
- Is compatible with current and future user agents, including assistive web technologies
With no guaranteed date for those guidelines to be published in 2018, businesses should act sooner rather than later to ensure protection from such lawsuits. If you have questions regarding web accessibility guidelines or whether your business could be liable, feel free to contact me.
