With demand letters and litigation increasing, we are often asked about the current legal situation when it comes to the ADA and the Internet. Here is a quick summary of the legal status for digital accessibility, enforcement of the ADA when it applies to websites, and the regulatory status as it pertains to updating the ADA to specifically include requirements for the Internet.
ADA Legal Status for Digital Accessibility
There are no specific published technical requirements that define how the ADA is applied to the Internet. But this doesn’t mean that you can’t be sued under the ADA if your website is not accessible.
The ADA’s effective communications requirements state that firms must provide auxiliary aids and services necessary to ensure equal access to goods and services and effective communication. For example, if a bank offers online banking, that service must also be accessible to people with disabilities. If a retailer’s website offers an exclusive coupon code or special pricing on an item, people with disabilities should be able to access these deals.
Different circuit courts and the DoJ have different positions about how and when to apply the effective communications requirement. Some courts have held that the website of a business with a brick & mortar presence is covered under the ADA only to the extent the website can be shown to have a nexus with a physical store. Other courts have held that no such nexus is required.
ADA Enforcement Status for Digital Accessibility
The first thing to consider is the likely enforcement scenario that will be encountered. The DoJ has moved forward with enforcement based on WCAG 2.0 Level AA as the technical standard for accessibility. State and local agencies have exerted pressure on businesses using state non-discrimination statutes. Various advocacy groups are also pushing for equal access. Finally, there has been a dramatic rise in demand letters from ADA-focused law firms in recent months, many from Carlson Lynch Sweet & Kilpela LLP of Pittsburgh. We expect that more firms will join the fray as word spreads.
Enforcement of the ADA as it relates to digital accessibility has drastically expanded in recent years and will continue to grow going forward.
ADA Regulatory Status for Digital Accessibility
The DoJ has not issued a regulation adopting the legal standard for what constitutes an “accessible” website.
- The Title III rulemaking (RIN 1190-AA61) has a projected issuance date of regulations no sooner than 2018.
- The Title II guidelines are on a more aggressive timetable but still unlikely to be put into effect for many years.
With any official regulations still years away, the closest thing to official policy is the DoJ Advanced Notice of Proposed Rulemaking (ANPRM) relating to Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. This indicates that the regulations will be based on WCAG 2.0 A and AA requirements.
Nearly all of the recently settled web accessibility cases relating to the ADA have been settled by requiring the defendant organization to conform to either A or AA requirements or a mix of both.
So, while SSB should stress that no specific technical standards for the ADA compliance of websites exist, SSB is reasonably confident in selecting the WCAG 2.0 A and AA requirements as the likely ADA technical standards. However, SSB would counsel firms not to view the WCAG as sacrosanct and would actively counsel organizations to request carve-outs from the WCAG that make sense in the context of the needs of the organization.
Watch for the next installment in this series, “So You Got a Demand Letter…Now What?”