Recently there has been an increasing number of lawsuits filed under the American with Disabilities Act which claim that a company’s website is inaccessible by the disabled community. Basically, the plaintiff in such lawsuits claims s/he attempted to access the website but was presented with barriers not present for the non-disabled consumer. Plaintiffs include sight and hearing disabled persons as well as those experiencing mobility difficulty with hand maneuvers.
Title III of the ADA provides that a public accommodation must provide disabled persons access equivalent to that provided to non-disabled persons. Public accommodations are those places that generally allow access to the public. Courts across the United States have held that a company’s website may constitute a public accommodation if it provides a means to purchase products or services through the website or provides information about the company necessary for a disabled person to locate a physical location to obtain goods or services. In addition, lawsuits are also increasing under Title I of the ADA which prohibits discrimination in employment against the disabled. The plaintiffs in these lawsuits claim that barriers to access of the company website for the purposes of applying for a job on line or obtaining information about employment discriminate against the disabled.
Examples of barriers to access of a website include such issues as the following:
the inability of the blind to access the website with the assistance of a web reader which vocalizes content on the website – images that do not contain alternative text are not readable by this device;
the inability of the sight disabled to be able to adjust focus, color, brightness and font size of the website through his or her own computer;
the inability of the mobility disabled person to access the website solely through the keyboard without use of the mouse, or solely through use of the mouse without use of the keyboard.
Unfortunately, the ADA, which was enacted prior to website technology, does not provide any guidelines for when a website provides “equal access.” Courts have relied on the WCAG 2.0 (Web Content Accessibility Guidelines version 2.0) provided by the World Wide Web Consortium to provide some guidance on what a website must include to be considered compliant with the ADA.
Failure to comply with the ADA can result in substantial monetary damages and attorney fees, in addition to the expense of redesigning and modifying the website and POS terminals. Some states have their own statutes which contain minimum penalties. California’s state law imposes a minimum penalty of $4,000.00 for each attempt at access to a website foiled by a barrier to access. Many of these lawsuits are filed by California plaintiff attorneys on behalf of California citizens, including against Ohio companies that do business nationally.
To ensure compliance with the ADA it is imperative that you work with your IT department or provider. Ensuring compliance with the WCAG standards will help to limit exposure to these lawsuits. If you have any questions on this matter please call Maribeth Meluch 614-220-5120 or contact any of the attorneys in the Isaac Wiles Labor and Employment practice group.