As any early stage company trying to grow in today’s technology-driven world, with constantly evolving regulations governing cyberspace, it is imperative that you take steps to implement best practices early on. One reason to do it is to avoid the unnecessary cost and expense of potential ADA claims that have recently flooded companies across the country.
Numerous lawsuits and demand letters are alleging that websites are “inaccessible” in violation of the Americans with Disabilities Act of 1990 (the “ADA”). Although the Department of Justice is in the process of developing precise guidelines for website accessibility, the lawsuits and demand letters typically call for compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 level AA guidelines.
Which Websites Are Subject to the ADA?
Courts disagree as to whether a website that operates solely in cyberspace constitutes a “place of public accommodation” under Title III of the ADA. They generally agree, however, that where there is a nexus between the goods and services provided on the website and an actual physical location, the website must be accessible to those with disabilities.
What Does It Mean for a Website to Be “Accessible”?
WCAG 2.0 level AA guidelines are based on four principles: websites should be (1) perceivable, (2) operable, (3) understandable, and (4) robust.
1. Perceivable: Disabled users should be able to perceive website content using their available senses.
- In order to ensure websites are accessible using a screen reader, there should be text alternatives for non-text content, such as pictures, icons, graphics and links. Videos and audio content should have close captioning to make them accessible to hearing-impaired users.
- There should be sufficient color contrast between background and foreground, and color should not be used as the only way of conveying information. Type size should be resizable up to 200 percent.
- Web forms asking users to provide information, for instance to log in or check out, should have a clear label for each field.
2. Operable: Websites should be operable using a variety of assistive technologies or adaptive strategies.
- They should be navigable using only a keyboard, without a mouse. Users should be able to tab through elements and remain clear where they are on the page. They should be able to pause or stop time-based media or scrolling content.
- If there is a timed session and it times out, users should be able to log bag in within a short time period without losing data or their place on the page. Websites should not use flashing lights that may cause seizures in some epileptic users.
3. Understandable: Users should be able to easily understand not only the content, but how to operate the website.
- Websites should have a site map with headings and be organized in a way that the content makes sense when being navigated with a screen reader.
- Websites should operate in predictable ways; elements that appear on multiple pages should appear in the same place on each page, and operate in the same way.
4. Robust: Websites should be accessible using a variety of assistive technologies, and continue to be compatible as technology improves.
- Websites should assist users in avoiding and correcting mistakes, for example by providing suggestions for correcting an error.
- Companies may want to provide assistance in the form of a contact number or help line for users who encounter difficulty.
You can conduct an initial analysis of your website’s accessibility by using the WAVE web accessibility evaluation tool. Enter your website address, and get a summary of “errors” and “alerts” that may make the website difficult for a disabled person to use.
Making your company’s website ADA compliant now, before your company is a target of a lawsuit or a demand letter, makes good business sense. It will open your company up to more potential customers, limit your liability, position you to deal effectively with the regulatory challenges of growth, improve your company’s reputation in the marketplace and is simply the right thing to do. Also, being proactive in establishing compliance protocols for your growing company will cause you to stand out among your competitors, make you more attractive to potential investors and partners, and can greatly mitigate any regulatory actions if a regulatory agency decides to audit your business.
By Merrit Jones and Anna Nazarenko
FOLLOW UP NEWS: Businesses that have been waiting for the Department of Justice (“DOJ”) to promulgate regulations concerning website accessibility under Title III of the Americans with Disabilities Act (the “ADA”) will now have to wait a lot longer. Eight years after the DOJ began the rulemaking process on this issue, it has now listed the rulemaking as “inactive.” Read more here.