Courts have wrestled for several years with how to apply the ADA’s public accommodation requirements to online businesses or online aspects of businesses (USA Today published an article and quoted me on the issue available at the link below). The statute itself (enacted in 1990) does not address online businesses, nor do current regulations. Litigation in this area has also produced divergent results. In some cases, federal courts have dismissed such claims holding that online stores and websites are not public accommodations within the meaning of Title III of the ADA. In others, courts have held that commercial websites are a natural extension of the ADA’s accessibility goals and requirements.
The Department of Justice appears poised to address this issue through new regulations governing commercial websites. We anticipate that they may be issued as soon as December 2013 with compliance periods some time thereafter. Although not entirely clear at this point, DOJ will likely use the Web Content Accessibility Guidelines 2.0 created by the World Wide Web Consortium. The new regulations may also utilize portions of already-existing guidelines for government websites contained in Title II of the ADA.
The likelihood of future regulations — and the ever-present threat of lawsuits under existing law — make evaluating the accessibility of your business website an important proactive step. The best place to begin when considering accessibility modifications are with changes that directly impact the ability of disabled users to experience and utilize a website. These modifications may include:
- Ensuring that your website is designed so that it can be displayed using the color and font settings for each visitor’s browser and operating system (which may include assistive technology);
- Ensuring that text equivalents, or “alt” tags, are used for any photos, videos, or graphic content that is essential to the operation of the website;
- Labeling each control for any online forms or tables (such as drop down menus and “check boxes”) with descriptive HTML tags;
- Including visual notification and transcript for any audio content (such as including closed captioning);
- Providing an audio description of any video content that is essential to the operation of the website;
- Minimizing blinking, flashing and other such features (which may cause seizures and other cognitive problems); and
- Ensuring that any website content is not dependent on the user’s ability to recognize color (accommodation for color blindness).
The suggestions above are not intended to be a complete list of all accessibility features and modifications that may be required under future ADA accessibility regulations and guidelines. Rather, we’ve sought to address areas that are most likely to be included, as well as accessibility aspects that most often result in current ADA litigation (such as the inclusions of close captioning). As with many aspects of the ADA, a proactive approach to compliance is often the most cost-effective approach.