AccessibilityOnline Accessibility Act Seeks to Clarify Accessibility Guidelines for Private Businesses’ Digital Presence

Online Accessibility Act Seeks to Clarify Accessibility Guidelines for Private Businesses’ Digital Presence

The Beckage Accessibility Team is closely following bipartisan legislation introduced into the U.S. House of Representatives on October 2, 2020. The Online Accessibility Act, sponsored by Congressmen Lou Correa (D-CA) and Ted Budd (R-NC), would add language to the existing Americans with Disabilities Act (ADA) and provide much-needed clarity on the legal requirements for consumer-facing websites and mobile applications to be considered accessible to individuals with disabilities, particularly blind and visually-impaired persons.

If passed, this legislation would have clear benefits for both disabled individuals and online businesses that operate consumer websites, defined as “any website that is purposefully made accessible to the public for commercial purposes.” The Online Accessibility Act would limit the number of predatory lawsuits filed against business owners while helping them improve accessibility for their disabled customers.

Beckage continues to monitor the state and federal dockets daily and the number of lawsuits that are filed continue at record speed.  On average we see about eight new lawsuits a day. These website accessibility lawsuits are filed by plaintiffs alleging unequal access to services on companies’ digital platforms due to incompatibility with assistive technology, like screen-reading software. While the Department of Justice (DOJ) has consistently held that the ADA applies to websites and mobile apps, it has fallen short of clarifying the precise requirements, leaving businesses confused as to whether their digital platforms are compliant. As result, a very high number of these cases are settled out of court to avoid gambling with high litigation costs in such uncertain legal terrain.

“This bill solves the problem by providing guidance to businesses on how to bring their websites into compliance. If our bill is passed, job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content,” said Rep Budd in a statement about the Act.

“We are optimistic that this bill will provide some much-needed clarity in the ADA legal landscape,” says Beckage Accessibility Team Leader, Kara Hilburger. “It is so important to have universal standards for accessibility to level the playing field and help businesses best serve their customers while avoiding lawsuits.”

This legislation is coming at a crucial time given the rapid increase in online shopping due to the COVID-19 pandemic, as consumers choose to avoid brick-and-mortar stores in favor of e-commerce options. However, the future of the Online Accessibility Act is still uncertain given its introduction during a particularly polarized election season and an unpredictable political landscape hanging in the balance.

“Beckage continues to advise clients to be proactive when it comes to website accessibility,” Hilburger confirmed.  “There are many low-cost, high impact steps companies can take immediately, such as publishing an Accessibility Statement, that can place them in a legally defensible position while they work to implement accessibility by-design into their new online products and offerings.”   

Beckage remains hopeful that the Online Accessibility Act will gain traction and provide much needed relief for the business community.  Beckage works with businesses from all sectors and industries as they navigate the uncertain legal landscape surrounding website accessibility.  Through collaborating with in-house technologists, outside developers, members of the disability community, and internal assistive technologies, Beckage attorneys work under privilege to conduct internal and remedial audits of client websites and mobile applications, evaluate platform compatibility, and oversee implementation of recommended remedial or accessibility-enhancement measures.  Our team helps companies develop and implement a sustainable accessibility programs that contemplates compliance with the WCAG guidelines while monitoring the development of website accessibility standards and best practices that can protect your business.  

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WebsiteWebsite Accessibility Under the ADA: What You Need to Know

Website Accessibility Under the ADA: What You Need to Know

Many of us are familiar with the Americans with Disabilities Act, otherwise known as the ADA. It is a landmark civil rights legislation that was signed into law by President George H.W. Bush in 1990. It works to guarantee that individuals with disabilities have equal opportunities to participate in mainstream American life, from finding employment opportunities to shopping at the mall or entering a public library.  But “mainstream” life has changed a lot over the past 30 years, especially with the tremendous growth we have seen with the advent of the internet. More and more companies with or without brick and mortar stores have some type of online presence. As such, the past few years there has been a tremendous amount of litigation surrounding how the ADA should be applied to websites.  

Current Status of the ADA

When the ADA was first enacted, Congress could not have anticipated just how far the internet would reach into everyday life. As a result, the ADA focuses on accessibility and discrimination issues that would happen in person—for example, standards for accessibility for brick-and-mortar business locations and employment setting. The ADA does not specifically provide guidance regarding the accessibility standards applicable to internet or online businesses nor does it expressly exclude online businesses either.  

Title III of the ADA requires that every owner, lessor, or operator of a “place of public accommodation” provide equal access to users who meet ADA standards for disability. Over more recent years, the argument arose that this concept applied to websites, prompting a wave of litigation by plaintiff’s claiming that accessibility barriers experienced on a website violated the ADA because it denied them full access to and equal enjoyment of the goods, services, and accommodations of the website. But with no formal guidelines or laws in place outlining what online ADA compliance actually means for online businesses (with or without a connection to a brick-and-mortar business), it has been largely left up to the courts to decide what compliance looks like.  

As we reported at the end of last year, the United States Supreme Court denied a petition filed by the pizza conglomerate Domino’s, sending a relatively clear statement that Title III of the ADA does in fact apply to websites. But the Supreme Court’s denial of cert still leaves businesses hoping for actual guidelines in limbo, waiting for either another case to reach the Supreme Court or the Department of Justice to issue guidance in this area.

Recommended Steps for Addressing Website Accessibility  

In the meantime, Beckage has proactively monitored this area of the law over the past few years and recommends clients take intentional and protective measures to address website accessibility sooner rather than later. As either part of litigation defense strategy or proactive website remediation measures, we generally recommend implementing a comprehensive, phased approach to website accessibility, including the following measures:  

Working with Beckage or a trusted third-party vendor that we together vet and retain to perform an independent website-accessibility audit for conformance with the Web Content Accessibility Guidelines (WCAG 2.1), the prevailing set of guidelines that set forth website accessibility standards.  

Implementing a forward-facing website accessibility notice that is prominently and directly linked from the website home page that provides individuals with disabilities who are experiencing technical difficulties the ability to request assistance. Those staffing the phone line and receiving e-mails regarding this should be knowledgeable about the statement and be trained on how to help users that are experiencing technical difficulties navigating the website.

Deploying an internal website accessibility policy that guides the organization’s decision making and processes and procedures for designing, developing, and procuring accessible content on the website. Most websites are regularly updated and modified and accordingly there should be procedures in place as part of this internal policy for regularly reviewing the website for new accessibility barriers.  

We also recommend regularly testing your website with assistive technology used by the disability community to access your content such as the JAWS screen reader. This process can provide valuable intel on potential and unforeseen barriers that may occur to users.  

Even without specific guidelines or a clear understanding of what compliance looks like, there are several low-cost, high impact steps companies can take to address website accessibility.  We recommend clients work on website accessibility alongside their larger public-facing disclosure compliance work, such as regularly updating their Website Privacy Policy and Terms of Use to comply with the evolving paradigm of privacy legislation and regulations such as the California Consumer Protection Act (CCPA) and GDPR.  While the legal standards of website accessibility are still murky, the technology to support accessibility online is only getting stronger. Beckage’s Accessibility Team, made up of web developers and a former web design business owner, is here to help you navigate ADA website compliance and make your online presence more welcoming and accessible to everyone. From litigation defense to proactive website remediation, our experienced team is uniquely positioned to partner with your business and assist with your ADA compliance efforts.  

*Attorney Advertising. Prior results do not guarantee future outcomes.

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