Abstract

• Although no formal set of guidelines have been released, website owners are encouraged to immediately comply with level A and AA of the Web Content Accessibility Guidelines as published by the World Wide Web Consortium.
• Aggressive law firms have had success bringing suit against organizations whose websites are not in compliance with these guidelines.  In certain instances, the US Department of Justice has assisted plaintiffs.
• The success of this litigation has emboldened law firms to increase the scope of their legal attacks by running company websites through automated checking tools and, if found to be out of compliance with these guidelines, sending demand letters threatening a lawsuit if a "settlement" isn't reached.

Background

The Americans with Disabilities Act of 1990 (42 U.S.C. § 12182) was a sweeping measure to address discrimination against persons with disabilities.  A portion of the Act applies to organizations of "public accommodation" which is any organization open to the public. It states that an organization of public accommodation has to make reasonable efforts to serve disabled individuals.  Thanks to the original ADA and the subsequent ADA Amendments Act, the term "disability" is broadly defined and includes both physical and mental impairments. The U.S. Department of Justice, tasked with enforcement, published its associated regulations in the Code of Federal Regulations.  28 CFR Part 36, also known as Title III, outlines the regulations specific to organizations of public accommodation.

Back in 1990 when the ADA was made into law, the World Wide Web didn't exist.  But in a groundbreaking 2006 class action lawsuit, the National Federation of the Blind sued Target Corporation for violation of ADA, pointing to the section of the Act that prohibits discrimination in the "enjoyment of goods, services, facilities or privileges." The suit asserted that the website was included in that description.  Judge Marilyn Hall Patel agreed in her partial denial of defendant's motion to dismiss.

In 2010 the Department of Justice announced its future intent to update its ADA regulations to specifically address websites.  However, in its statement, the DOJ said "covered entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line..." leading to the reasonable conclusion that if an alternative existed the website could remain as is. 

Fast forward to 2015, where two lawsuits filed against Harvard University and the Massachusetts Institute of Technology alleged that the universities had not properly captioned video content on their websites, thereby rendering the content inaccessible to users with disabilities.  Among several arguments, the universities requested a stay to allow the DOJ to release its long-awaited website-specific update.  

Remarkably, the DOJ filed a Statement of Interest in each of these lawsuits (Harvard and MIT) supporting the plaintiffs.  The DOJ argued that it didn't know when it might issue its update and therefore a stay wasn't applicable:

"Primary jurisdiction is further inappropriate given that the scope and timing of any final rule on web accessibility is speculative and far from imminent; although the title III proposed rule, or NPRM, is currently scheduled for a Spring 2016 publication, there is no scheduled date for publication of a final rule." 

A sub-set of law firms interpreted this as an invitation to sue or demand settlement from organizations across the country. 

Current Status

In 2016, the DOJ issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPR) further delaying their update until 2018 or later.  However, in this SANPR, it is clear that the DOJ is leaning towards adopting the WCAG 2.0 standards.  

"WCAG 2.0 has become the internationally recognized benchmark for Web accessibility.  In October 2012, WCAG 2.0 was approved as an international standard by the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC).  Several nations, including Australia, Canada, France, Germany, Hong Kong, Japan, New Zealand, and South Korea, have either adopted WCAG 2.0 as their standard for Web accessibility or developed standards based on WCAG 2.0.  Within the United States, some States, including Alaska, Georgia, Hawaii, and Minnesota, are also using WCAG 2.0 as their standard for Web accessibility." 

Regardless of when the rules will be issued, the effort required by law firms to run an automated check and send out a form letter is minimal.  This, combined with sympathetic courts and a helpful DOJ, means more demand letters are expected.

Solution

The first step is to make immediate updates to your website to minimize accessibility failure rates from automated testing suites. This will reduce the attractiveness for predatory law firms hunting for a quick settlement.  This is a quick fix but only a half measure because many of the WCAG rules are contextual and open to interpretation, two characteristics that don't lend themselves to the pass/fail assessment of automated testing.  

The second step is to engage with the disabled community directly and act on their feedback.  The best method for this is to commission a usability test with disabled test takers.  This will uncover actual barriers and provide a set of clear, research-based recommendations.  Implement these recommendations and you both minimize legal exposure and make your website a better resource for the disabled.  Don't be dissuaded by the perceived cost of a usability test, data suggests that an audience as small as 5 participants can uncover the majority of problems.  

Conclusion

The downside of the current environment is that organizations with poor website accessibility will focus exclusively on the quick gain of reducing liability and not the larger issue of substantive improvement for disabled audiences.  Website owners should carefully consider both the financial as well as the social cost/benefit analysis of the recommended two-step remediation, and do so quickly. Better to be proactive than to react to an envelope delivered by certified mail.