Recently I was talking to my wife about stressful situations that come up in our lives. We talked about how little kids have little problems, and big kids have big problems. How I am always worried when one of our older kids throws a laser to first base, holding my breath that the kindergartner puts a glove on the ball. Or how we are always rushing to “clean for the cleaners.” The overarching theme of the conversation was that we sometimes overlook the small things, which the other takes for granted.
The same is true in the business world. While many people focus on the big things, there are little things that a business could be doing to minimize exposure. With just the click of a button, a company’s website or mobile app could become the source of a disability discrimination claim. Digital accessibility lawsuits are on the rise. While physical facilities may be top of mind when it comes to the Americans with Disabilities Act (ADA), websites and mobile apps also must comply. Outlined below are considerations to help a company avoid an ADA lawsuit and four steps to take if one receives a digital accessibility claim.
Does the ADA require website accessibility? The ADA may not explicitly address website accessibility, but it ensures that individuals with disabilities enjoy full and equal access to a business’ offerings, whether goods, services, facilities, privileges, advantages, or accommodations. As technology continues to evolve, the interpretation of Title III has broadened to encompass websites and mobile apps. This means that people who use assistive technology can now rightfully expect access to information on these digital platforms.
Could any company be at risk of violating the ADA? Increasingly, plaintiffs are sending demand letters or filing lawsuits against educational institutions, alleging that their websites (including mobile versions) and mobile apps violate the ADA (or state law, if applicable) because they are not equally accessible to individuals with visual and/or hearing-based disabilities. Although there is no clear or binding standard as to what it means to have an “accessible” website, many federal courts have accepted the Web Content Accessibility Guidelines (WCAG) as the applicable standard for ADA website accessibility compliance. And in unsurprising news, this means virtually all businesses with a physical location (or possibly even just a website) are vulnerable to claims from so-called accessibility testers who often file hundreds of ADA lawsuits.
Don’t wait to review the company website To avoid becoming a target for digital accessibility claims, businesses should proactively review their websites, apps, and all public-facing digital content to check for compliance with the ADA and WCAG. Here are six initial steps to take:
- Make sure websites and apps have sufficient color contrast so that individuals with limited vision or color blindness can read text.
- Add captions to videos so that individuals with hearing disabilities can understand information included.
- Check websites for any links that are expired or outdated.
- Replace “dead” links with updated hyperlinks or remove them entirely.
- Frequently test whether websites and apps are compatible with different screen sizes.
- If working with a web developer, negotiate an indemnification provision for these types of lawsuits.
What can a company do if it gets served? If a company is on the receiving end of a digital accessibility demand letter or lawsuit, its officials should consider taking these critical next steps:
- Contact counsel immediately.
- Test the website or app to determine if it is ADA and WCAG compliant.
- Immediately fix any compliance issues on the website or app.
- Review agreements with a web developer for possible protections or relief against such lawsuits.
Conclusion I never assumed that the process of “cleaning for the cleaner” would stress out my wife, and she never assumed that I was stressed watching baseballs thrown to first base. Likewise, I assume, you and your company never assumed that a website developed by a web developer could expose you to an ADA accessibility lawsuit. Overcoming these assumptions will help minimize liability and keep the serial “click, click, sued plaintiff” away from your company.
Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com. The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the DJC guarantees the accuracy or completeness of any information published herein. Copyright © 2024 BridgeTower Media. All Rights Reserved.
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