Do businesses have a responsibility to make their websites accessible to visitors with disabilities?
In part 1 of this article, I explored why the answer to that question isn’t a simple “yes” or “no.” Despite a lack of clear, consistent guidance on website requirements under the Americans with Disabilities Act (ADA), plaintiff’s attorneys continue to bring claims of ADA violations against private companies. These “Surf-by” lawsuits are unlikely to dissipate given the lack of regulations providing the necessary guidance to bring websites into “compliance.”
However, practical direction for businesses is beginning to emerge. While states and the federal government struggle to address this pervasive issue, the web development industry has progressed by providing coherent standards for website accessibility for over a decade. These standards, which have recently been adopted by the European Union (EU), offer significant clues about the future of American internet accessibility law.
What Is WCAG?
In 2008, the World Wide Web Consortium released its Web Content Accessibility Guidelines (WCAG) 2.0. These guidelines were broadly and immediately accepted as the industry standard.
The newest iteration, WCAG 2.1, establishes three discrete levels of accessibility, providing a clear roadmap for entities attempting to bring their websites into compliance over time. The primary goal of these standards is to make websites “perceivable, operable, understandable and robust” for visitors with any kind of disability. The standards cover dozens of website accessibility characteristics, such as formatting for compatibility with screen readers, alternative text for images, closed captioning and transcriptions for audio and videos, and the ability to navigate pages solely by keyboard. (For an example of an accessible website that meets WCAG standards, visit wuhcag.com).
Keep in mind that WCAG is not equivalent to the ADA. The ADA is codified federal law, while WCAG is a set of guidelines created and controlled by a non-government entity. As Stephen Boyd, US Assistant Attorney General for the Office of Legislative Affairs, wrote in a 2018 letter to Congress, “noncompliance with a voluntary technical standard does not necessarily indicate noncompliance with the ADA.” Organizations can choose whether to adopt these guidelines—and some authorities have already made overtures, as evidenced by the Department of Justice’s settlement agreements. Additionally, several courts have imposed injunctions requiring defendants to meet these standards as a remedy in website accessibility disputes. A few courts have even gone so far as to conclude that WCAG guidelines are tantamount to the ADA’s statutory requirements.
Last year, all three of the EU’s standards organizations adopted WCAG for all “web content, electronic documents, and non-web software, such as native mobile applications.” Given that the EU tends to lead the world in internet rulemaking (consider the impact of the General Data and Privacy Regulation, for instance), official WCAG adoption by US agencies may be on the horizon.
For Some US Companies, WCAG Is Already Law
The WCAG standards are so widely accepted that the DOJ had considered them as part of its proposed ADA rulemaking in 2016. While a final rule did not materialize, and the DOJ has since declined to endorse WCAG, the standards are applicable to another federal law: the Rehabilitation Act of 1973 (the Rehab Act).
Under the Rehab Act, government agencies at all levels must maintain their websites in accordance with the information and communication technology standards released by the US Access Board, which adopted WCAG by reference in 2017. Per its last revision, in January 2018, the Rehab Act requires federal organizations to comply with WCAG 2.0 (not 2.1).
The same rules apply to private entities that receive federal funding. For example, a housing provider that receives federal funding through a Department of Housing and Urban Development (HUD) program is required to apply WCAG standards to its website.
But what about private entities that do not receive federal funding? The answers remain unclear, particularly for any organization that may contract with a business that receives federal funding.
Understanding Your Liability
Despite the absence of bright-line rules, there are several best practices private businesses can employ to limit their liability under surf-by lawsuits. Although the WCAG standards are not legally enforceable except under the Rehab Act, their adoption is the safest way to minimize business risk. Even a protracted implementation or remediation plan to do so can establish that the business is taking steps to implement reasonable accommodations for website accessibility. However, if your business chooses to contract for web design, hosting, or other services to address this issue, it is critical to negotiate express indemnification provisions relating to WCAG compliance.
It is worth noting that not every business faces the same degree of risk. In 2014, grocery delivery company, Peapod entered into a settlement agreement with the DOJ to remedy its website’s alleged ADA violations. In 2017, regional supermarket chain Winn-Dixie was found liable for violating Title III through its website, after a District Court in Florida ruled in favor of a blind plaintiff who couldn’t access the site’s coupons and store locator features. In both cases, the company had a large public profile and wide customer base.
Generally speaking, the more traffic your website generates, the greater your risk. Thus, a small business operating in a relatively narrow niche isn’t as likely as a company like Winn-Dixie or Peapod to face a lawsuit or regulatory action.
Additionally, implementing WCAG standards can be an expensive prospect. Many businesses may be unable to undertake a complete overhaul of their public-facing websites. Indeed, this may create a potential defense, as the ADA exempts entities from providing accommodations which “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.”
Even in such cases, however, business owners should consider providing alternative forms of access to website content. The most common example is telephone assistance providing the same access to products and services made available through a website. Be aware however that any such alternative must be available to the same extent the website is—i.e. 24 hours a day, 365 days a year.
Regardless of how you choose to minimize your company’s liability, it is a good idea to stay up-to-date on the latest WCAG standards and developments in this evolving legal arena. It is only a matter of time until federal and state lawmakers adopt legally binding rules applicable to all private entities.
In the meantime, the attorneys at Offit Kurman will continue to keep our eyes on emerging laws, guidelines, and legal disputes involving website accessibility. To receive updates as soon as they’re published, subscribe to our blog.
Until then, if you have any questions about this or any other legal matter that may impact your business, please contact Andrés.
ABOUT ANDRÉS VERA
Andrés Vera’s practice is concentrated on federal contracting and general corporate law. With a focus on small business government contracting, he is well positioned to advise start-ups and small businesses seeking to enter the complex federal procurement landscape. His experience as a former clerk in the U.S. Small Business Administration’s (SBA) Office of Procurement Law allows him to counsel clients on compliance with the agency’s 8(a), HUBZone, Woman-Owned, and Service Disabled Veteran-Owned (SDVO) programs. He also advises federal contractors and subcontractors in bid protests, contract disputes with federal agencies, and general corporate administration. Prior to law school, Andrés was himself a government contractor for the U.S. Agency for International Development.
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