Federal Courts Have Ruled That Websites Must Comply With The Americans With Disabilities Act ("ADA")
This article was written in response to the many questions we have received about websites having to comply with the ADA. It is somewhat comprehensive so if you are short on time just skip to the Key Points.
If You Already Own A Website
All website owners should test their websites for accessibility and not rely on third party vendors or developers to ensure compliance. We highly recommend the Utah State University's WAVE Web Accessibility Evaluation Tool, the most recognized publically available free website accessibility evaluation tool available today.
In order to achieve compliance all pages of your website should have a WAVE evaluation rating of zero errors, zero contrast errors and zero alerts.
Background and General Information
We all want to be welcoming and to have our websites viewable by everyone. Sometimes website accessibility for the disabled is overlooked and website owners with the best of intentions have sites that cannot be equally accessed by those with certain disabilities.
While website handicap accessibility might once have been thought of as "just a nice thing to do", and of course it is much more than that, United States Federal courts across the country from New York to Texas, California to Florida have ruled that the Americans with Disabilities Act (the "ADA") requires website owners to make their websites accessible to those with visual and hearing impairments.
The ADA may sound familiar as it is the same set of 30 year old Federal laws that requires access ramps, doors wide enough for wheelchair access and handicap parking spaces that you see at businesses, theaters, local government buildings, parks and other public places in your neighborhood. As a Federal law the ADA applies to everyone in every state, county, city, town and village in the United States. The only lawful exceptions are for religious institutions.
While websites cannot provide physical devices for disabled access like wheelchair ramps and special parking spaces Federal courts have ruled that websites are required to provide their digital equivalents.
For example, website owners need to provide their websites with the computer code necessary for screen readers used by the blind and visually impaired to "read" the words in the site and to convey what images "show" without disabled users being able to see them. Websites are required to have colors that do not interfere with the site being clear to those suffering from color blindness and to have close captioning for videos for the deaf or hearing impaired.
There are many additional standards and guidelines to implement which require actual human interpretation of a specific website's unique content and construction of the computer code that assistive technologies make use of.
Website handicap accessibility and ADA compliance cannot be achieved with just a simple push of a button, the installation of a widget, plugin code or other short cut, cookie cutter solutions.
This is unfortunate. If the implementations required for website accessibility were more simple and easier the more they would be adopted. It would be a "win-win" situation for the disabled and website owners alike. However, that is not currently the case.
Right now thousands of Federal ADA website accessibility lawsuits continue to be filed at record rates against entities large and small and from coast-to-coast. It has been described as a "flood" and an "onslaught". Businesses, non-profits and even small government website owners are affected. States like California, New York and Florida have seen the most of these lawsuits and not just in their big cities but in outlying and rural areas too.
The fact is that the overhwhelming majority of websites are not handicap accessible in accordance with the law. This means most website owners can be sued for non-compliance with the ADA.
ADA website accessibility lawsuits are often filed and served on website owners without so much as a phone call or letter letting them know their website is not compliant with the law - and none is required by the ADA.
According to the ADA and the courts, website owners are required to know the law and abide by it without any notification from those who may sue them.
These lawsuits cost website owners thousands of dollars in attorney fees for defending these cases. Further, because the rulings on these ADA cases provide that most of the plaintiff's are entitled to attorney fees, the website owner ends up paying for both lawyers.
Over 95% of entities sued for ADA website accessibility either settle their cases out of court or lose in trial.
In addition to attorney fees for the lawyers for both sides of the case, the party that settles or loses pays for court costs and they are required to repair or reconstruct their website within a short period of time or get sued again.
Taking down a non-compliant website may be a preventative measure if your organization can live without a website. Most entities that interact with the public cannot afford to be without a website in this day and age.
For entities who are being secretly investigated by law firms or are being sued for having a non-compliant website the damage is already done and taking their website down will not help. The ADA provides that damages are incurred in the past tense, for having been previously denied access, not that they may be denied access in the future.
This article continues to provide key bullet points for quick reference, including links to sources which provide greater detail and depth, and will then explain the issues in more detail to help you understand what website accessibily is, why it should be important to you and your business and of some of the various requirements to make your website ADA compliant and handicap accessible. You can always contact us to get a quote to create a website for you or to reconfigure your existing website for handicap accessibility.
“Bottom line: If your website or app is not ADA compliant, you’re tempting fate and ultimately delaying the inevitable. The risk of being sued is real, as the number of lawsuits filed for inaccessible websites keeps growing.” Cyndi Masters, DBS Interactive, 02-20-2019
The Law: The American with Disabilities Act (ADA)
The ADA is a series of Federal statutes signed into law on July 26, 1990, by the late President George H.W. Bush.
The ADA guarantees that people with disabilities have the same opportunities as everyone else to participate in the "economic and social mainstream of American life", to enjoy access to the same employment opportunities and entertainment, purchase of goods and services and to participate in the same State and local government programs and services as those without disabilities.
No matter their size, income or status, every business large and small, sole proprietorship, partnership, LLC and corporation, non-profit organization and government agency must comply with the ADA. Only religious organizations are exempt from ADA requirements.
ADA violations can result in severe penalties. The maximum civil penalty for the first violation of website ADA compliance ranges from $55,000 to $75,000, a second violation rises from $110,000 to $150,000. This is in addition to attorney fees, court costs and expenses which can cost many thousands more.
Websites Must Comply With the ADA
The United States Department of Justice (DOJ) clarified that the Office of the Attorney General believes that Title III of the Americans with Disabilities Act (ADA) applies to websites.
Federal courts have determined that the ADA Title III applies to websites because website barriers that prevent accessibility to visually impaired, deaf and hard of hearing individuals is a discriminatory act in violation of the ADA.
The United States Supreme Court refused to hear an appeal and thereby let stand a case requiring Dominos Pizza being forced to reconstruct it's website to become ADA Title III compliant.
No Lawful Excuses For Failure To Comply With The ADA
The ADA "... is a “strict liability” law—if the business is noncompliant, the plaintiff wins regardless of the defendant’s intent or even knowledge." There are no legally acceptable excuses for lack of ADA Title III website accessibility compliance (e.g. ignorance, web developer is working on it, etc).
Ignorance Is No Excuse. If Your Website Isn’t Compliant, You Can Be Sued!.
Even the Department of Justice's failure to specify regulations does not excuse a company from creating an accessible website and app..
Lawsuits Can Be Filed With No Notice or Chance to Fix Your Website
ADA Website Compliance Lawsuits Against Small Businesses Are Skyrocketing
In 2019 alone 38 wineries in New York State were sued for their “ … failure to design, construct, maintain and operate its website to be fully accessible and independently usable by (Plaintiff) and other visually impaired people.”
In the past 18 months more than 75 New York art galleries were sued for their websites violatiing the ADA.
Supermarket chain Winn Dixie lost an ADA website compliance lawsuit on the basis that those with visual impairments couldn’t access their website using their screen reading software.
Thousands of companies across all industries have been named as defendants in website accessibility lawsuits.
ADA Website Compliance Lawsuits Against Municipalities Growing Fast
Section 504 of the Rehabilitation Act of 1973 is a national law that protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of the law apply to employers and organizations, including local governments and municipalities, whether or not they receive financial assistance from any Federal department or agency.
An emerging trend in ADA website compliant lawsuits is the targeting of municipalities and universities.
While some city and county governments have moved quickly to enhance their digital offerings to meet WCAG 2.0 A and AA guidelines, too many others, however, have not and are facing increasing fines as a result.
A Serious Risk For Non-Profits
Federal courts have ruled that nonprofit websites must comply with Title III of the ADA.
According to Wired Impact, in their article Why Should My Nonprofit Care About Website Accessibility Standards?, it's not a valid excuse that a non-profit doesn't serve people with disabilities.
Not having an ADA compliant website can be costly to non-profits.
Defending ADA Website Compliant Lawsuits Is Expensive
Companies sued for lack of an ADA compliant website pay “anywhere from $10,000 to over $90,000 to resolve the claims”.
Settling an ADA website compliant lawsuit quickly can help, but "a company that settles such a suit quickly will typically pay about $20,000. If the business fights the case, costs can run into the hundreds of thousands of dollars".
As an indication of the strength of ADA website compliance cases an astounding 55% of ADA website compliant lawsuits settle within 60 days and 93% of 2018 cases have settled within 1 year.
Plaintiff's are commonly seeking damages, attorney fees, and website modifications to make businesses comply with the Americans with Disabilities Act.
“The only way to protect yourself completely is to bring your website into reasonable compliance with the WCAG 2.0 guidelines. Speak to your website provider or IT specialist to determine what is involved and what it will cost and then implement a plan to make the website accessible.” Practice Guide: ADA Website Accessibility Litigation, Yankwitt, LLP, Attorneys-at-Law, White Plains, NY
The World Wide Web, also known as the Internet, can easily be described as the most fantastic development of the communications age. From paying a bill, ordering a pizza, doing our jobs, interacting with family and friends or finding answers to our every day questions use of the Internet has become an integral part of normal life for billions of people throughout the globe.
The overwhelming majority of websites are inaccessible for millions of disabled people even though our society is more receptive to the needs of the disabled and have laws requiring websites to be accessible.
With law suits against all types of businesses dramatically increasing, not having an ADA compliant website can expose your business to expensive litigation on top of expenses to retrofit your website for handicap accessibility.
Why You Should Care About Website Accessibility
While you might have a general idea of the concepts, website accessibility means ensuring that everyone can access your website. This includes those whose abilities are changing such as the elderly. Disabilities are not limited to those regarding sight but include physical and neurological impairments, those challenges regarding the ability to process information and those with problems hearing.
According to the U.S. Census Bureau nearly 57 million people, 20% of Americans, has a disability. With a nearly 90% Internet use rate, this indicates that millions of Americans with disabilities are on line. Further, not much has been done to address these problems.
These disabilities include;
8.1 million (3.3%) have a vision impairment. These people might rely on a screen magnifier or a screen reader, or might have a form of color blindness.
7.6 million (3.1%) have a hearing impairment. They might rely on transcripts and / or captions for audio and video media.
19.9 million (8.2%) have difficulty lifting or grasping. This could, for example impact their use of a mouse or keyboard.
15.2 million (6.3%) have a cognitive, mental, or emotional impairment which can be aggravated by online content.
In a study put together by Google based on data from the World Bank (WDI, 2008) and CDC.gov (NHI Survey, 2008), it was found that......there are more hard of hearing users in the United States than the population Spain and more users who are blind and low-vision in the United States than the population of Canada.This represents a significant increase in audience, including those for e-Commece websites, for those companies with accessible websites.
Moreover, those businesses who do not establish and maintain handicap accessible websites may lose significant reputation capital with their peers, the handicap population and the commuinity at large. To the general public, such businesses may seem insensitive, deliberately indifferent or even actively acting in callous disregard of the needs of their aging and challenged neighbors. Even the impression of such a stance is not a wise marketing or public relations position.
Website Accessibility Lawsuits - A Dramatic Rise
Having and accessible website is not only good for the community but can help your business avoid accessibility law suits.
So, even if you aren't looking for a larger audience for your website, don't want to boost your SEO or improve your website's usability you need an accessible website to comply with the law.
Most people are familiar with the Americans with Disabilities Act (ADA). The ADA was passed by the federal government in 1990 and helps to protect people who require physical accommodations such as ramps for wheelchairs. The law also prohibits discrimination against the disabled. What you may not know is that ADA compliance now applies to websites as well as physical storefronts and facilities. While a website would not be in violation of the ADA for not having an elevator or ramp it may be using inappropriate colors, file types, fonts and lack the back end coding that screen readers need to "read" the content of your website to the blind. Such hard-to-see colors and fonts can discriminate against people with color blindness, as can certain file types that don't allow computers to read text out loud because they allow for access to people without disabilities while preventing access to those who suffer from them.
Since 2018 there has been a dramatic rise in website accessibility lawsuits in Federal Courts with the number of lawsuits against businesses nearly 3 times the previous year's rate. Such lawsuits are filed against all kinds of businesses large and small. From thirty eight wineries in New York State being sued for non-accessible websites, an ADA lawsuit against pop star Beyoncé for her website being inaccessible to handicap fans, a large grocery chain, Winn Dixie being forced to update its website for the blind, lawsuits against Hershey's, Nike, Amazon, David's Bridal, various moving and storage companies, restaurants, jewlery stores, banks, hotels, motels, Burger King and Dominos Pizza.
Making Your Website Handicap Accesible
There are currently four website accessibility standards;
There are also many guidelines, technical specifications and checklists;
- Techniques for WCAG 2.0, Techniques and Failures for Web Content Accessibility Guidelines 2.0
... and many more
As you can see, making a website handicap accessible involves a great deal of work and cannot be achieved by any one solution. As stated by renowned ADA accessibility consultant Edward Wald:
"... true accessibility goes much deeper than basic design or supplementary apps.", “You cannot simply address accessibility on top of existing application code and expect the issues to be fixed,” he says. "It starts with the wireframe and extends to how the site or app is coded. Accessibility incorporates everything from how the copy is written and the site designed to how it is tested for various users’ experiences".
We hope this article has been informative and provided some guidance into the complexities of website handicap accessibility. If you have any questions please don't hesitate to reach out to us and we will be glad to answer them.
We are not attorneys and this article is not legal advice. If you need legal advice, you should speak with an attorney.
Revised: January 24th, 2020
By: Nick Friedman, Director of Information Technology