Recently, companies across the country have received lawsuits or demand letters from plaintiffs alleging the company is violating Title III of the ADA or the state law equivalent (such as the Missouri Human Rights Act or Illinois Human Rights Act) because their websites are not fully accessible to individuals with visual or hearing disabilities. In some cases, a visually impaired person alleges he or she cannot fully utilize a company’s online hiring process. In other cases, a hearing impaired individual alleges he or she cannot understand a video posted on the website. If companies ignore requests to change their practices, they are often greeted with a lawsuit in federal court.
Once in federal court, a quick dismissal of the action is becoming less and less likely. Federal judges are permitting plaintiffs to pursue their claims because most company websites meet the definition of “public accommodation,” and thus are subject to accessibility regulations under the ADA. And while the Department of Justice has not yet implemented rules for what constitutes a legally accessible website, even though the DOJ began the process in 2010, most courts agree that until specific standards are adopted, it is best to determine whether the website complies with the “effective communication” provision of the ADA. Unfortunately for employers, this is generally this is done on a case-by-case basis, thereby decreasing the likelihood of a successful dispositive motion at the outset of litigation.
This recent trend requires companies to examine the accessibility of their websites and ask following questions:
- Did the third-party vendor who built the website explicitly state that the website will be fully accessible to individual with disabilities in accordance with state and federal law? If not, should the company hire a consultant to review website accessibility issues?
- What would be the cost to implement version 2.0 of the Web Content Accessibility Guidelines for the website? (2.0 WCAG is considered the unofficial golden standard for ADA compliance, and is utilized by most federal government agency websites)
- Does the website include a statement that disabled individuals can contact the company for assistance with any accessibility issues and does that process comply with the ADA’s reasonable accommodation regulations?
While some public accommodation lawsuits have settled after companies agreed to change their practices and website and pay attorneys’ fees, some lawsuits remain, seeking damages, injunctive relief, and excessive attorneys’ fees. The bottom line is that Human Resource professionals should review these issues and determine if any accessibility issues exist, and if so, what action needs to be taken.
The attorneys at McMahon Berger will discuss this topic and other complex ADA issues in greater detail during its next seminar scheduled for October 25, 2018:
https://www.mcmahonberger.com/events/save-the-date-mcmahon-bergers-labor-employment-forum-2/ . After the presentation, an IT consultant will be available to answer any technical questions regarding website accessibility issues under the ADA.
As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.