How “accessible” is your website? decide to prioritize digital accessibility in the new year and avoid a lawsuit | Womble bond dickinson
Businesses and other slow-to-adopt institutions were inundated last year with legal challenges over the accessibility of their websites and mobile apps, as the number of lawsuits filed alleging violations of Title III of the Americans with Disabilities Act (“ADA”) and related state laws appeared to be at an all time high. With no slowdown in sight in our increasingly digital world, organizations need to take proactive steps now to ensure their websites and mobile apps are accessible to people with disabilities.
ADA Title III prohibits discrimination on the basis of disability in places of public accommodation, including businesses, hotels, hospitals and private institutions of higher education. Higher education institutions are bound by the ADA (Title III applies to private institutions and Title II applies to public institutions) and Article 504 of the Rehabilitation Act 1973, which also prohibits Discrimination on the basis of disability in educational programs or in the provision of an establishment. . While the ADA’s definition of âpublic accommodationâ only lists physical locations, such as restaurants and retail stores, many courts, including the Federal Courts of the First and Seventh Circuit, have held that websites were considered public accommodation. In April 2021, the U.S. Court of Appeals for the Eleventh Circuit joined the Third and Sixth Circuits in ruling that public accommodations are limited to physical locations. However, organizations whose websites reach a national audience may be subject to litigation in federal jurisdictions more favorable to potential web accessibility requesters and in states with anti-discrimination laws that cover accessibility requests. digital.
The DOJ led by President Joe Biden has also made web accessibility an application priority. At the end of 2021, the DOJ settled enforcement actions with Rite Aid Corporation and Hy-Vee Supermarket Chain regarding the accessibility of their online registration portals for COVID-19 vaccines and with the Champaign-Urbana Mass Transit District regarding accessibility. of its website and its public transport mobile. applications. Under the three regulations, the companies agreed to quickly bring their content into compliance with the Web Content Accessibility Guidelines (WCAG), version 2.1, level AA.
Organizations should not wait to receive a formal notice or to receive a complaint to recognize the importance of digital accessibility. Rather, they should proactively seek to build and maintain their websites in accordance with WCAG guidelines, which are considered the gold standard in the absence of legislative or regulatory requirements for web accessibility. While no compliance effort can prevent all legal challenges, taking proactive steps towards accessibility can deter serial filers and improve responses to demand letters and defensive strategies if a lawsuit is filed. .
Plaintiff firms often use automated assessment tools to identify potential defendants. Organizations should also audit their own websites and mobile apps as a first step in identifying issues that need to be addressed. Many vendors and consultants offer services to perform audits and help patch websites and applications to make and keep them accessible. But beware: not all accessibility providers are created equal. Vendors offering to make websites accessible through inexpensive “overlays” or automated software that purport to detect and fix accessibility issues have recently come under criticism, including in litigation. Organizations looking to make their websites accessible should be cautious in selecting external vendors who will add value rather than widen the target.