Is your website ADA-compliant?

Without specific guidance from the Justice Department, lawsuits proliferate

A federal class-action lawsuit filed in 2015 against Harvard University might well portend a new compliance challenge for New Hampshire businesses: website accessibility under the Americans with Disabilities Act.

The suit, National Association of the Deaf v. Harvard University — along with a companion case filed simultaneously against neighboring MIT — alleges that free online courses and video content offered by Harvard to the general public did not have appropriate closed captioning, thereby making the content inaccessible to hearing impaired individuals in violation of the ADA.

Most businesses and employers are generally familiar with the ADA as the federal statute that protects disabled individuals from employment discrimination and that mandates amenities such as handicap accessible bathrooms, ramps and parking spaces. Many might be surprised to learn that it also applies to websites.

Passed in 1990, more or less simultaneously with the advent of the World Wide Web, the ADA makes no explicit reference to websites. Nonetheless, since 1996, the Department of Justice has consistently maintained that the ADA applies to websites on the grounds that a website is a “public accommodation.”

The Supreme Court has never weighed in on the issue, but in the lower courts, including in the First Circuit, the federal circuit that includes New Hampshire, many courts have held that the ADA applies to websites (albeit by relying on differing rationales).

The suit against Harvard is hardly the first of its kind — in 2012 a federal court in Massachusetts held the ADA applicable to Netflix’s online streaming service — but such claims are becoming more common.

Familiar companies such as Target, Peapod and Hobby Lobby have all been the subject of either lawsuits or DOJ enforcement actions over website accessibility. In fact, according to the Los Angeles Times, 250 federal lawsuits have been filed over ADA website compliance since the start of 2015.

In New Hampshire, meal delivery company Blue Apron was the target of a website accessibility lawsuit this year, and the state government has undertaken an initiative to make its websites accessible, suggesting that this issue might be on the radar of local lawmakers as well.

While the DOJ has focused enforcement actions on companies that explicitly offer services (such as online ordering or video streaming) over the internet, companies with “informational only” websites are not necessarily off the hook.

Earlier this year, a federal court in Florida held that the ADA applied to supermarket chain Winn-Dixie’s website, in part because it had addresses of store locations and thus “operate[d] as a gateway to Winn-Dixie’s physical store locations.”

Businesses might take some solace in the fact that private lawsuits based on the ADA’s public accommodation requirements are limited to injunctive relief (and attorneys’ fees). In other words, plaintiffs can’t ask courts to award them monetary damages — they can only require that the website be made accessible. While the DOJ can assess monetary fines, their enforcement priorities have tended toward large companies offering goods or services online.

With other areas of the ADA, such as with building design standards, DOJ regulations provide a detailed roadmap for businesses to achieve compliance. Counterintuitively, while the DOJ has consistently maintained for over two decades that the ADA applies to business websites, it has never issued regulations on websites. The long-awaited website accessibility regulations had been expected in 2018 — timing that is now in doubt due to an executive order issued by President Trump intended to slow the growth of regulations.

So how can businesses protect themselves in the absence of explicit guidance? Addressing issues such as compatibility with screen readers, close captioning for video (and transcripts for audio), and ease of navigation for those with limited dexterity might help keep a company’s website off the radar of regulators and advocacy groups.

We know from enforcement actions and other public pronouncements that the DOJ’s preferred standard, upon which future regulations will likely be based, is WCAG 2.0 AA, a technical design standard created by the World Wide Web Consortium (available at www.w3.org/WAI/intro/wcag). Even for companies that don’t take the most conservative approach of preemptively adopting the WCAG 2.0 AA standard, a proactive approach to website accessibility can save a business not only money, but the time and distraction of responding to a lawsuit.

Christopher G. Bond, a corporate attorney in the Manchester office of Primmer, Piper, Eggleston & Cramer, can be reached at 603-626-3300, ext. 1541 or cbond@primmer.com.