The Americans with Disabilities Act is a piece of landmark legislation enacted in 1990 to ensure that all Americans had equal access to numerous aspects of American society by “assur[ing] equality of opportunity, full participation, independent living, and economic self-sufficiency for [disabled] individuals.” The ADA is divided into five sections known as “titles” that each address a different concern affecting disabled individuals. The ADA addresses potential accessibility and opportunity concerns relating to employment, public services, public accommodations, telecommunications, and miscellaneous provisions including an anti-retaliation provision.
And yet, today, the Internet and the worldwide wide are pervasive and indispensable. As such advocates for the disabled and their attorneys are seizing on this fact of modern life and filing lawsuits against companies that fail to take steps to ensure that websites are accessible to all people. Since the first lawsuit alleging website ADA violations was filed in 2006 in National Federation of the Blind v. Target Corp., an array of companies have faced legal action. Companies including National Basketball Association (NBA), hard Rock Café International, Bed Bath & Beyond Inc., DSW Inc., The Home Depot, Inc., Jos. A. Bank Clothiers, Inc., Forever 21 Inc., Tommy Hilfiger Licensing, LLC, J.C. Penney Company, KMART Holding Corp and many others have faced legal action due to alleged ADA non-compliance.
More than 60 recent lawsuits claiming ADA violation lawsuits cite Title III public accommodations grounds. Furthermore, a number of cases have also been filed against businesses for their failure to provide an accessible job application process or an alternative accommodation.
A Brief Background into Recent ADA Compliance Developments
Since 1990, profound and fundamental changes in the way business is carried out, information is obtained, and the way people shop for goods and services have occurred. The driving force behind these changes is the explosion of growth of the Internet. While the Internet existed in 1990, the modern web was still in the process of being developed and did not make its debut until August 1991. Few individuals anticipated that a humble project announced in the alt.hypertext newsgroup would come to upend nearly all aspects of daily life. In today’s world where web access is nearly a necessity, it is no surprise that plaintiffs are pursuing companies that fail to make their web services accessible.
Some companies have erroneously relied on the premise that the Department of Justice’s delay in issuing specific ADA website accessibility regulations protected them from liability. However, the courts have generally been receptive to plaintiff’s claims under Title III of the ADA and Section 504 of the Rehabilitation Act. Furthermore, businesses that would still consider delay should familiarize themselves with the ADA lawsuits against Harvard and MIT where the DOJ has filed a brief stating that “Both the ADA and Section 504 currently obligate Harvard to provide effective communication to ensure equal access…” to its services. Furthermore, in both matters, the court dismissed motions by the defendants to dismiss or delay proceedings until DOJ promulgated rules.
After all, Bank of America signed the first web accessibility settlement agreement back in 2000. If your business is still delaying and simply hoping for the best, it’s passed time to adopt a more effective and inclusive strategy.
We Have Real-World ADA Accessibility Audit Experience
While many marketing companies and web developers claim to offer solutions that involve little work, effort and cost on your part claims of this type should be met with suspicion. The simple fact is that ensuring website compliance with the current understanding of the ADA guided by Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA) and in the absence of a Notice of Proposed Rule Making (NPRM) takes significant research and a careful assessment of the site features, industry, and potential risks.
For past clients, our approach to achieving ADA accessibility compliance and minimizing the risk or litigation has included a website audit to identify every image, video file, audio file, plug-in, and any other non-standard element in your website design. As appropriate, these elements are then provided with a detailed text description, “alt tag” description, audio descriptions, text transcripts and captioning, and other accessibility measures. Furthermore additional steps are taken to ensure that the site layout and structure do not confuse accessibility software or render it inoperable including:
- Providing links to previously embedded videos
- Add appropriate H1 and H2 tags to describe the contents of the page
- Ensuring that tables used for layout purposes do not have header columns or rows
- Providing a “skip navigation” feature to aid navigation via screen reader
- Ensuring flashing or strobing images are not present on the site
- Providing alt attributes for area tags
- Ensuring all PDFs, applets, and other site features are accessible to assistive software or alternative accommodations are provided
- Utilizing a LABEL element when text input fields are present
These steps and measures are but a few of the adjustments required to reduce the likelihood that your site will become the target of an accessibility lawsuit.
Work With an Experienced ADA Web Accessibility Compliance Team
Remember, the DOJ is on record that its lack of guidance regarding national rules is not a shield to potential legal liability. Legal defense bars have reported significant increases in litigation of this type. Furthermore, courts have been reluctant to dismiss these matters and typically recommend for the lawsuit to proceed to discovery meaning that litigation costs can quickly accumulate.
Therefore, the best way to approach these legal risk is to take pro-active measures towards compliance. Take the first step towards managing your risk by contacting an experienced member of the Majux team today.
