Since 2017, U.S. courts have considered more than 3,000 lawsuits alleging the defendants’ websites violate the accessibility requirements of the Americans with Disabilities Act (ADA) and other civil rights laws. The Americans with Disabilities Act of 1990 prohibits discrimination based on disability. While the ADA does not specifically identify the internet, the federal government has taken the position that Title III of the ADA covers access to websites of public accommodations.
Currently, ADA website compliance is only mandatory for government-managed websites. However, the Department of Justice has indicated that all businesses should do their best to ensure their websites are also compliant.
For its guidance, the ADA relies on the World Wide Web Consortium’s (WC3) Web Accessibility Initiative, which lists four major components of ADA website compliance:
- Information and user interface components must be presentable to users in ways they can perceive. Your content must be available to view in multiple forms and easily visible or heard regardless of the disability.
- User interface components and navigation must be operable. Your website navigation should be easily usable without encountering limited functionality or time constraints.
- Information and user interface operations must be understandable. All of your webpages must be readable, predictable and capable of correcting user mistakes.
- Content must be robust and interpretable reliably by a wide variety of user agents, including assistive technologies. Your website should be compatible with disability-assisting technologies.
Website Action Plan
Creating a website action plan will help you ensure that both the overall website and all documents posted thereon are available and provided in alternative, accessible formats. Recommended tasks for the plan include:
- A prepared course of action, including the following steps, can help ensure your organization’s website is compliant. Properly train all internal and external individuals transitioning your webpage. The U.S. Department of Justice and American Disability Association provide several documents and guidance.
- Create and post an official online policy of your future compliance.
- Audit and review all new and modified webpages to ensure the content is accessible.
- Investigate that all webpages are utilizing accessible HTML coding.
- Analyze that your website’s display color and font settings are complaint with all browser and operating systems.
- Verify all images (e.g., photos, graphics) are accompanied by text equivalents including “alt” tags or long descriptions. Add a Hyper Text Markup Language (HTML) tag to every image and graphic, allowing for brief or longer amounts of text to describe the element.
- Provide text captions and audio descriptions for video files.
- Identify online form control features (e.g., buttons, drop down menus, text fields) with a descriptive HTML tag.
- Offer website documents (even .pdfs) in HTML or text-based format. Publish your organization’s contact information (e.g., telephone, email) for visitors to request accessible information or service assistance.
- Partner with disability groups to audit your pages. Utilize their feedback to improve your website’s accessibility.
- Communicate alternative ways for disabled individuals to access website information and services as they may not have access to a computer.
How to Respond to an ADA Website Lawsuit
Despite a lack of an official ADA compliance law, individuals continue to file lawsuits. Businesses in health care, government and education are the most common targets. Attorneys looking for easy money typically target small businesses’ websites by offering a low settlement fee.
If your organization is targeted by an ADA website compliance grievance, consider taking the following actions in response:
- Consult with your legal counsel. They can expertly determine the credibility of the threat and prevent future threats against your organization.
- Review and determine if the grievance is credible. A lawsuit may likely begin by citing “violations of the Americans with Disabilities Act, Title 42 U.S.C. 12101 and 12181.” Lookout for inexpensive settlement options as they are indicators the lawsuit is deceptive and a potential scam.
- Respond to the plaintiff. Request your attorney to draft communication to the plaintiff that you have received their grievance and have consulted and with legal counsel. Many scammers will panic when a lawyer is mentioned.
- Update your website. Regardless if your organization is legally obligated to comply, you should attempt to provide a website that is easily accessible by people with disabilities.
You May Be Protected Through Your Insurance Coverage
Many businesses don’t realize the cost of defending against ADA lawsuits may be covered by their existing insurance policies. Employment Practices Liability Insurance (EPLI) policies typically provide for coverage of third-party discrimination as part of the standard policy or as an endorsement. The third-party wrongful act EPLI coverage is commonly defined as “discrimination of an insured in his or her or its capacity as such against a third party based on such third-party’s race, color, religion, age, sex, national origin, disability, pregnancy, sexual orientation or other status that is protected pursuant to any applicable federal, state or local statute or ordinance.”
If your EPLI policy provides coverage for an ADA lawsuit, it will pay for defense costs but not website improvements or corrections, bodily injury or property damage. Insureds who intend to file an insurance claim must provide timely notification of the lawsuit to the insurer pursuant to terms of the insurance policy. If your organization fails to notify your carrier of a lawsuit, it could result in a loss of coverage for other litigation. Lawsuits typically contain several allegations. It is important to thoroughly review the lawsuit with your insurance broker to determine if any allegations are covered by other insurance you have in place.
We’re Here to Help with Compliance
Even without the legal obligation to do so, building accessible features into websites is a good business practice. Accessibility makes your website easier to use for everyone, not just users with disabilities, and may attract more customers.
Further, even if a single complaint seeks modest damages, your business may incur much greater expenses of time and money in defending the suit. One of the many advantages of EPLI coverage, which includes coverage for third-party ADA claims, is access to carriers’ risk management resources that can mitigate insureds’ liability exposure. Partner with your broker or connect with a member of our team to better understand emerging risks and find the broadest coverage in a complex marketplace.
The information provided in the above article is not legal advice, and employers should consult with legal counsel for guidance for their organization before changing or implementing policies.