Is it necessary that your company website offer accessibility for people with disabilities?
In June of 2017, Florida federal District Court Judge Robert Scola found Winn-Dixie liable under The Americans with Disabilities ACT (ADA) Title III regarding Public Accommodations and Commercial Facilities guilty of not making accommodations to their website. The court decided the additional cost of upgrading the website was insignificant and not an undue burden when compared to the cost Winn-Dixie spent on creating the website itself.
It has become a growing trend that private parties are filing federal law suits for unsubstantiated violations. In 2017, there was only 814 federal lawsuits filed and according to UsableNet over 2,200 cases where filed in 2018; that was an increase of 181% from the prior year.
In a letter from Congress to the Attorney General, “The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.” Congress address the fact that no defined guidance has been establish and law suits of this matter will continue to increase.
In a letter back from the Department of Justice, clarified 2 withdrawn rulings took place in the previous rulemaking decision regarding accessibility, the first withdrawn covered accessibility of web information and series of public accommodations and the other withdrawn addressed accessibility of web service for state and local governments. It was noted within the withdrawal the department is evaluating whether promulgating specific web accessibility standards through regulation is necessary and appropriate to be deemed compliant. However, Congress also stated that the absence of specific regulations dose not serve as a basis for noncompliance.
“Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
The statement “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA”, may provide some clarity or more confusion with this statement. Some courts are interpreting this as a public company may be viewed as complaint if they offer accessibility without being fully complaint according to the accessibility guidelines (WCAG) 2.0 or 2.1.
In the end, the workforce has changed quite a bit since this law was establish in 2010 and today some may say there is still no substantial regulatory requirements.
However, it was suggested by the DOJ by adding a 24/7 telephone access that could be utilized as an alternative to website accessibility; consequently, there is no merits addressing the viability of having a 24/7 telephone option in lieu of an accessible website.
The final decision remains with congress to provide greater clarity through the legislative process. The DOJ finial response back was “we look forward to working with congress to continue these efforts”, basically, the DOJ will not be providing clarification themselves on this subject.