What do Nike, Netflix, Domino’s, Kylie Jenner, and Beyonce all have in common? They have all been subject to non-ADA compliance lawsuits with regards to their websites. Since the Internet is a huge part of the day-to-day activities of just about everyone, everyone should be able to access it without barriers.
The Americans with Disabilities Act was instituted in 1990 in an effort to end discrimination based on differing abilities. Drawing heavily from the landmark Civil Rights Act of 1964, which established protections against discrimination based on race, religion, sex or national origin, the ADA went a step further by requiring organizations to provide “reasonable accommodations” to employees with disabilities.
This was a fairly revolutionary addition that led to the widespread adoption of wheelchair access ramps, accessible restroom facilities, and many other equal-access accommodations that have become a regular part of most American workplaces. In 1990, however, legislators had no way of knowing that the then-infant internet would soon become not just a key element of doing business, but the very backbone of global commerce. Accordingly, various courts have ruled that commercial websites are places of public accommodation and thus subject to ADA rules.
Since the ADA does not specifically address web accessibility, the Department of Justice will not, at this time, intervene. This means it cannot levy fines or penalties against non-compliant businesses. However, individuals and groups can file civil suits against businesses. If the court rules in the plaintiffs’ favor (the individual or group), the business will be ordered to make their website accessible, and may have to pay the plaintiffs’ attorney fees. Failure to meet these obligations in the time allotted may result in a civil contempt of court charge or additional legal action by the plaintiff.
All of this begs the question: What makes a website ADA Compliant?
The short answer is that anyone, regardless of their cognitive skills, physical needs and capabilities should be able to understand, navigate and interact with the content provided on a website or related digital tools.
The long answer is that a website must comply with the Web Content Accessibility Guidelines (WCAG) as defined by the WC3 Web Accessibility Initiative.
- Texas has its own statute in place in addition to the ADA.
- According to the Texas Administrative Code, websites must comply with the Federal Government’s Section 508 of 2016. Additionally, the state also requires websites to follow WCAG guidelines.
- There are 13 WCAG guidelines based on 4 principle issues.
- Perceivable Issues are those that affect a user’s ability to find and process information on a website (for example, providing audio descriptions for video content).
- Operable Issues are those that impact a visitor’s ability to navigate and use a website (for example, ensuring that all site functions and navigation can be operated via keyboard-only commands).
- Understandable Issues concern a user’s ability to discern and comprehend all information and navigation on a website (for example, composing error messages that include a clear explanation of the error and direction for correcting it).
- Robust Issues involve a website’s ability to adapt and evolve to meet the changing needs of users with disabilities (for instance, testing compatibility with all leading screen readers and ensuring that those capabilities can be upgraded in the future).
Since 2018, website and mobile app accessibility lawsuits have made up roughly a fifth of all ADA Title III filings in federal courts, which now consistently exceed 10,000 lawsuits annually.
These numbers do not include the substantial number of website and mobile app cases filed in state courts and demand letters that are resolved prior to the filing of any lawsuit.
While three states (New York, California, and Florida) have seen the most cases, Texas saw a 45% increase in ADA accessibility lawsuits, enforcement actions, and demand letters targeting Texas businesses from 2018-2020:
- 2018 – 196 ADA non-compliance cases
- 2019 – 239 ADA non-compliance cases
- 2020 – 285 ADA non-compliance cases
Fortunately, there are incentives and benefits to having a compliant website. The IRS offers a tax credit to help offset the cost of bringing a business into compliance. This applies to all compliance guidelines whether it’s physical equal-access accommodations, or website accommodations.
It’s a very simple form to fill out and submit with a tax return. As long as the business meets either of the following two criteria it qualifies for a credit of up to 50% of the compliance expenses with a maximum credit of $5000.
- Thirty or fewer full-time employees.
- Gross receipts of no more than $1 million in the prior year.
The benefits of having a compliant website include increasing its potential audience and improving SEO efforts. A key element of WCAG is accessibility to screen readers, and these readers crawl website pages similarly to search engines. If a website meets the Web Content Accessibility Guidelines, it will likely appeal to users, search engines, and screen readers alike, ultimately improving SEO efforts. For this reason, meta tagging, alternative image text, and video transcripts should be seriously considered.
Website accessibility law will most likely continue to evolve, albeit slowly. None of the administrations since the ADA went into effect have addressed the modernization of it. A few things are clear, however. Plaintiffs will continue to file lawsuits. They are pushing for coverage of sites that only provide information (i.e., news and pharmaceutical websites), investor-facing websites, B2B websites and websites unconnected to physical locations where goods and services are offered. Plaintiffs are also expanding their lawsuits to other digital assets, such as mobile apps and games. These areas are all uncharted territories ready to be mined by industrious lawyers and plaintiffs.
Digital accessibility is a necessity, and businesses that comply will not only protect themselves from potential legal issues, but also enjoy the possibility of a tax credit as well as make its services open to a new world of potential customers.