This is Episode 1 of the Certified Accessible Podcast.
In this episode, I will cover the following bullet points:
- First, why an ADA Website Compliance law or regulation is unlikely for 2020
- Second, how federal court rulings and DOJ actions have already told us what we need to do which is 1) make our websites accessible and 2) apply principles found in the Web Content Accessibility Guidelines
- And the third bullet point is we have flexibility in how we make our websites accessible
And this is separate from the list above but before we start, I want to distinguish two related but distinct terms: ADA Website Compliance and website accessibility.
ADA Website Compliance refers to making changes to ensure our websites comply with the Americans with Disabilities Act. Think of it as the legal side.
Website accessibility can mean two things depending on the context. It can either refer to the process of making your website accessible to those with disabilities or how accessible your website is. Think of it as the technical side.
And now, let’s dive in to the material.
With the Supreme Court declining to review the Robles v. Domino’s case, private entities – small businesses, corporations, non-profits, etc. – in the United States continue to be without formal federal guidance on how to make their websites compliant.
And that is highly unlikely to change in 2020.
Before we continue, let’s add some background on why the DOJ looms so large in ADA compliance discussions. The Department of Justice or DOJ is an administrative agency that enforces federal statutes and can create rules to help interpret statutes. The Civil Rights Division of the DOJ oversees Title II and Title III of the Americans with Disabilities Act or ADA.
The DOJ had drawn fairly close to issuing regulations which would have provided clarity and guidance on web accessibility but they formally withdrew from rulemaking in 2017 – and it is extremely unlikely they will re-initiate the rulemaking process under the current Trump administration. However, if a new President is elected in 2020, we could potentially see ADA Website Compliance regulation from the DOJ in late 2021 or 2022.
As far as Congress goes, they are aware of the surge in Title III litigation. In 2018, a group of Representatives wrote the DOJ, urging them to take action. In July 2019, a group of Senators followed up with another letter, once again, asking the DOJ for guidance.
Additionally, in July, a group of Representatives introduced a bill that would, in part, require the Attorney General, within one year, to decide what would constitute reasonable accommodation by websites.
Aside from the website accommodation portion, the other parts of the bill were very similar to another bill which passed in the House but stalled in the Senate in 2018 which means it is highly unlikely this new bill passes.
As it stands, there is nothing to indicate any type of web accessibility-ADA Compliance legislation will be enacted by Congress in 2020.
The great news is that we don’t need to wait on the DOJ or Congress for guidance. The legal direction and practical implications are very clear:
- First, every website needs to be accessible.
- Second, WCAG 2.0 conformance level AA is commonly cited as a reference for web accessibility
- And third, you have flexibility in how you make your website accessible so long as you make it accessible
Let’s address each bullet point.
First, every website needs to be accessible.
Title III of the Americans with Disabilities Act has been construed to apply to websites by the overwhelming majority of U.S. District and Circuit Courts.
Title III of the ADA states “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”
What this means is if you’re an establishment that is open to the public, you must provide for the full and equal use and enjoyment of your offerings to everyone, including persons with disabilities.
The “places of public accommodations” language has been a focal point: Are websites places of public accommodation?
The ADA was signed into law in 1990, well before the Internet became an integral part of our daily lives and this is readily apparent if you read the language of the statute.
The examples of “places of public accommodations” given are:
- Grocery Stores
- Gymnasiums and so on
Clearly, websites and mobile apps were not contemplated.
Nevertheless, the DOJ – as it was considering publishing regulation for website compliance – brought a slew of enforcement actions that required numerous entities including H&R Block and Miami University to make their websites accessible.
Seeing the DOJ’s aggressive stance and initial private settlements over website compliance, more and more private plaintiff’s law firms began filing ADA Title III lawsuits. In 2014, there were over 4,000 Title III lawsuits. In 2018, there were over 10,000. And there are more than 11,000 projected for 2019.
(Credit to Seyfarth Shaw’s ADATitleIII.com blog)
While there are only two ADA Website Compliance cases that have been decided on the merits, through numerous rulings on various motions, we know that courts 1) overwhelmingly view websites as places of public accommodation and 2) there is a split among the courts as to whether a place of public accommodation can be solely a web-based business or whether a website must have a sufficient nexus to a physical location to be consider a place of public accommodation.
But what does a split in the courts mean?
Let’s add some background on the federal court system.
There are 94 U.S. District Courts (which are federal trial courts) and there are 13 U.S. Circuit Courts (which are courts of appeal), 11 of which we could potentially see ADA cases in (the other two circuit courts are for specialty appeals). The district courts fall under their respective circuit courts that span different geographic regions across the United States.
For example, the Eleventh Circuit is comprised of a handful of district courts located in Alabama, Florida, and Georgia.
With that said, it’s important to remember that district courts are federal courts which can generally hear civil actions between citizens of different states.
And so here’s where ADA Website Compliance comes back into play.
This means you can effectively be sued in any circuit; plaintiff’s lawyers will file lawsuits in district courts that have ruled favorably to claims that are similar to the ones they are making.
To illustrate, let’s imagine an email service provider that has no physical location. A plaintiff’s law firm can potentially file a lawsuit against the email service provider in any district court. A plaintiff’s lawyer will not file in a circuit that has held a physical nexus is required for a website to be considered a place of public accommodation.
The end result is whether you are a web-based entity or an entity with a physical location, you need to have an accessible website because you can be sued in any of the U.S. District Courts across the United States.
Two common defenses that have been raised in ADA Website Compliance cases are the due process and primary jurisdiction defenses.
The due process defense states that there is no language in the ADA that mandates website accessibility and therefore it’s a violation of due process to find liability.
The primary jurisdiction argument is that courts should wait until the DOJ publishes regulations since they oversee Title III of the ADA.
While legally these are strong technical defenses, federal courts, for the most part, are rejecting them.
So could you put up a technical argument that there is nothing in the ADA that expressly states your website must be accessible?
Could you also argue that there’s nothing in the ADA that lists out exactly how you make your website accessible?
Yes, but making these arguments is likely to be a losing endeavor. One in which you lose time, money, and energy and still need to make your website accessible.
This is why we see so many ADA Website Compliance settlements.
This all leads to the next big question: how do you make your website ADA compliant?
Both the DOJ and courts have continually referenced the Web Content Accessibility Guidelines (WCAG) 2.0 conformance level AA as the standard to follow.
WCAG is a set of recommendations for making web content more accessible to persons with disabilities. These guidelines are created by the World Wide Web Consortium (W3C) under their Web Accessibility Initiative (WAI). The W3C is a non-profit, non-governmental international community that works together to develop web standards.
Essentially, there is a group of people who are trying to make the web better, and they create standards for coders and developers to use when making websites and applications. One of their initiatives (WAI) is to make the web more accessible for persons with disabilities, hence WCAG.
However, it’s important to clarify that WCAG is not the law for private entities in the U.S.
In fact, in the DOJ’s response to the initial 2018 letter from Congress, Assistant Attorney General, Stephen E. Boyd, wrote:
“Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
The Section508.gov website similar states:
“…if you’re subject to the ADA, you have more flexibility in determining how to make your website compliant with the ADA’s general requirements”
Section 508 is the 1998 amendment to the Rehabilitation Act of 1973 which requires Federal agencies to make their electronic and information technology accessible to people with disabilities.
The Ninth Circuit of Appeals in California has also echoed that public accommodations have flexibility:
“The ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”
These statements are great news for private entities. What they mean is that you don’t have to follow one particular set of standards, you just need to make sure that persons with disabilities have equal and full access to your digital offerings.
The main problem with WCAG is it is written in a vague, technical language which makes it both hard to read and difficult to know whether your website meets certain success criteria.
And this really isn’t WCAG’s fault. WCAG was written as a set of technical standards for developers to follow, it wasn’t created to be law.
This episode of the Certified Accessible podcast is presented by Accessible.org and ADABook.com.
To learn how to reduce your risk of an ADA Website Compliance lawsuit, get The ADA Book. The ADA Book is written by me and can be purchased at ADABook.com.
My name is Kris Rivenburgh. Although I am an attorney, the contents of this podcast do not constitute legal advice. Thank you for listening.