The lack of US regulation leads to web accessibility lawsuits
In the absence of clear US government regulations, or even clear guidance, web accessibility lawsuits have rife, simultaneously drawing attention to web accessibility and, perhaps unfairly and unnecessarily, costing well-intentioned companies money.
According to an article (PDF) published in Bloomberg’s Electronic Commerce and Law Report in November 2015, more than 40 internet accessibility lawsuits were filed against American businesses under the Americans with Disabilities Act in 2015.
Clear need for an accessible website
There is a clear need to make websites accessible to visitors with disabilities, and the US Department of Justice has eloquently described this need.
Today, the Internet, particularly the websites on the Web, play a vital role in the daily personal, professional, and business lives of most Americans. Increasingly, private entities of all types are offering goods and services to the public through websites that function as places of public accommodation under Title III of the ADA [Americans with Disabilities Act]. However, many public accommodation websites make it difficult or impossible for people with disabilities to use them because of barriers created by accessible websites.
Also, according to the US Department of Justice, when Americans with disabilities are unable to access a website or have difficulty accessing a website, it impacts them, and these people “in today’s society, which is driven by a global marketplace and is unprecedented, severely disadvantaged access to information.”
The Ministry of Justice even addresses e-commerce explicitly. “From an economic standpoint, e-commerce … often offers consumers greater choice and lower prices than traditional storefronts, with the added convenience of not having to leave home to obtain goods and services.”
The Justice Department’s statement makes sense, and most businesses want to serve disabled customers online. From an ethical or business perspective, there is no question that the Internet should be accessible to all. Every company should develop a web accessibility strategy.
However, defining what it means for a website to be accessible can be a challenge. For example, how does a company know if its website actually meets a legal or practical definition of accessibility?
Litigation due to regulatory gaps
Despite the release in 2010 of an Advanced Notice of Rulemaking (PDF) stating that it would issue regulations on Internet accessibility and ADA Title III, the US Department of Justice has not provided clear instructions to businesses, including online retailers, what to do to comply with ADA. Additionally, it may be as long as 2018 before the US Department of Justice actually issues regulations for companies to follow.
Without clear guidance from the US Department of Justice, state and federal courts can make conflicting decisions about what companies should do to make websites compliant with the ADA and its Title III. Those courts could also, if you will, set the bar for Internet accessibility and ADA Title III compliance as high as they like.
This lack of guidance means – as an extreme example – that even online businesses that have followed all best practices and created a website that conforms to all guidelines set by third-party organizations like the World Wide Web Consortium may still be sued or coerced will pay damages to the plaintiffs. There is simply no functional definition of ADA compliance for web accessibility.
“Disability law experts say the lack of regulations governing website accessibility has fueled these lawsuits and left companies in a bind as to what, if anything, they should do to mitigate legal risks in this area,” the author of the above wrote Electronic Commerce and Legislative Articles.
To make matters worse, according to attorney and ADA legal expert Minh N. Vu, the US Department of Justice is sending mixed signals about whether or not websites really need to be accessible if adjustments are made.
Dating back to 2010, the Department of Justice “made a number of statements that led public accommodations to reasonably conclude that their websites need not necessarily be accessible as long as the public accommodations provide an equivalent alternative means of accessing the goods and services bots were provided on the website. The DOJ’s comments also led public accommodations to believe that once the DOJ has issued a final regulation, they would have time to bring their sites into line with the technical accessibility standard that the DOJ is adopting in that regulation,” Vu wrote in a July 2015 article.
According to Vu, the Department of Justice “has stated that “affected entities with inaccessible websites can meet ADA’s access requirements by providing an accessible alternative, such as their website. In order for a business to meet its legal obligation under the ADA, a business’ alternative must provide an equal level of accessibility in terms of hours of operation and offering of information, options and available services. For example, a department store with an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week to check their statements and make payments would need to grant access to the same information and provide the same payment options in its accessible one Alternative.'”
… the US Department of Justice is sending mixed signals about whether websites really need to be accessible if adjustments are made.
More recently, however, according to Vu, the Department of Justice has stated that a requirement for an accessible website currently exists and that 24-hour telephone service would not meet the ADA requirement.
This situation means that companies should, on the one hand, develop an online accessibility strategy that is ultimately good for customers with disabilities. But those companies — with the exception of the very smallest companies that are exempt from ADA compliance — should also understand that despite taking steps to conform, it’s still possible to get sued and lose.