ADA Compliance for Websites

ADA

The Americans with Disabilities Act (ADA) generally requires that businesses provide qualified individuals with disabilities equal access to their programs, services, or activities.

This includes electronic media and websites. The ADA and its California counterparts, the California Disabled Persons Act and Unruh Civil Rights Act, govern places of public accommodation. While the ADA applies to businesses with 15 or more employees, even smaller businesses can benefit from ensuring that their websites are ADA compliant. Doing so not only limits liability, but opens your company up to potential new customers who visit your website.

In 2010, the Department of Justice (“DOJ”) provide an Advanced Notice of Proposed Rulemaking on Accessibility of Web Information and Services. The purpose: “to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.” Unfortunately, the DOJ has still not published clear guidance or final regulations for the private sector.  The latest news is that this will happen in 2018. For now, the lack of clear guidance and regulations has left the field open to a stark rise in litigation. Thus, despite the lack of guidance, it is critical to ensure your business’s website is compliant with the obligations mandated by the ADA.

Your Business’s Obligations

The Ninth Circuit has concluded that a website is a “public accommodation” if there is a sufficient “nexus” between the service offered through the website and a brick and mortar location (e.g., ordering a pizza through Domino’s website).  In short, if your business posts online menus, accepts orders, permits customer reviews or testimonials, takes reservations, provides addresses and directions to brick and mortar locations, accepts job applications, includes answers to frequently asked questions, and has email or chat features, you should take necessary steps to ensure these aspects are accessible to those with disabilities.

Navigating the murky waters of ADA compliance for your company’s website can be confusing. The good news is that there are Web Content Accessibility Guidelines which provide businesses and web designers with standards for making web content more accessible. The DOJ has made it increasingly clear that it considers a website “accessible” if it complies with the standards of the Website Content Accessibility Guidelines (WCAG) 2.0, Levels A and AA. While the DOJ sorts out the legal definitions and rules regarding website accessibility compliance, they are currently using the WCAG as criteria for any consent decrees and lawsuits. Additionally, this is the standard recently adopted for federal government websites. More importantly, there is also speculation that this will be the standard applied to the private sector in 2018.

Common website accessibility issues include individuals with vision or hearing impairments requiring assistive devices and/or specialized software to access the Internet.  For those with a visual impairment, this may include software that enables them to magnify the content of a web page, reads the content to them, or enables use of a braille reader.  For those with hearing impairments, audio content should generally include closed captioning or images with captions.  A compliant website not only accommodates said impairments, but also recognizes current adaptive software and technology to the extent this is readily achievable.

Although there is not a sure fire checklist to ensure 100% compliance, the following provides guidance for your website’s accessibility.

Videos with audio

  1. Provide captions;
  2. Provide full text transcript of the video or a version of the video with a text description;
  3. Include a mechanism to stop, pause, mute, or adjust volume for audio that automatically plays on a page for more than 3 seconds;

Non-text content

  1. Add a text alternative to all of your images;
  2. Add a text alternative to your audio and video (a succinct description of the topic);
  3. Add a name to all of your controls (such as ‘Search’ or ‘Submit’);

Text content

  1. Break up content with subheadings for new sections;
  2. Add a ‘Skip to Content’ link;
  3. Label elements and give instructions;
  4. Clearly identify input errors;
  5. Avoid elements that flash more than 3 times per second;
  6. Ensure that each page of the website has a language assigned;

Color Usage

  1. Use more than color to communicate instructions;
  2. Use more than color to communicate other critical information (charts, graphs, etc.);
  3. Distinguish text links from surrounding text with a clear contrast between the link and the surrounding text that uses at least a ratio of 3:1, then add another differentiator.

The Main Take-Away

To avoid being caught in the current litigation surge against businesses, it is wise to review and test your business web content for accessibility, specifically for its accessibility for those with sight and hearing disabilities before posting online.  Additionally, in the coming year, be sure to keep your eyes and ears open for the DOJ’s much anticipated regulations and guidance pertaining to ADA compliance for websites.

 This report was reviewed for legal accuracy and updated in 2017 ​by Fisher & Phillips LLP.