If you were recently directed to an error page while trying to access a business’ website, there may have been a simple webpage error, but it is more likely that the business temporarily shut down their site in order to make their website fully accessible for people with disabilities. Another wave of lawsuits have recently crashed over businesses who have customers claiming that their company websites are not accessible for blind or visually impaired people. These lawsuits claim violations of the federal Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act. The purpose behind these suits is to ensure that disabled people don’t lack access or opportunity in an increasingly digital society.
People who are legally blind rely on screen-reading software, like Job Access With Speech (“JAWS”), to access the internet. These screen-readers require the information on websites to be able to be rendered into text format. Civil suits have been popping up whenever the screen-reading software used by the visually impaired is not able to interpret a company’s website. These suits are alleging that company websites need to make their information capable of being rendered into text so that screen-access software may vocalize the information.
The number of lawsuits filed against companies for these identical claims continues to rise, making this an important issue for employers to try to resolve as quickly as possible.
Which Businesses Must Make Their Websites ADA Accessible?
Title III of the ADA prohibits the discrimination of people on the basis of their disability in the activities of places of public accommodations. These “public accommodations” are businesses that are usually open to the public and can be placed in one of twelve broad categories, including the following: places of lodging, establishments or food or drink, places of exhibition or entertainment, service establishments, sales or rental establishments, places of public display or collection, or places of exercise or recreation. The ADA Title III requirements do not extend to private clubs or religious organizations.
What Are The Standards That Businesses Must Comply With?
The Department of Justice (“DOJ”) has taken the position that Title III of the ADA covers access to online tools, websites, and phone applications of public accommodations. However, DOJ has not yet promulgated any rules or regulations that create a uniform standard by which companies can abide.
In 2015, DOJ delayed their anticipated rulemaking to 2018. As 2018 comes to an end, DOJ has yet to provide any legal requirements for website accessibility. What we do have, however, is a growing body of common law cases that are relying on the voluntary Web Content Accessibility Guidelines (“WCAG”) developed by W3C. W3C is an international consortium that creates website standards.
WCAG 2.1 is the most recent version of the recommended guidelines. Though these guidelines are only recommendations, they carry a large amount of weight because they are the most widely accepted compilation of uniform rules which courts have recognized in website accessibility cases.
Recent California Cases
Cheryl Thurston v. Midvale, No. BC663214 (May 26, 2017)
Thurston (plaintiff) is a blind individual who can only read website content and access the internet with the assistance of a screen reading software. The Whisper Lounge (defendant) operated a website with a design that contained access barriers that prevented people like Thurston from being able to attain “full and equal access” to all of the products and services offered on their website. Thurston argued that this was a violation of California’s Unruh Civil Rights Act.
Thurston alleged that there were four main barriers that were found on The Whisper Lounge’s website: (1) Missing Alternative Text, or a text equivalent; (2) Empty links containing no text which causes the function or purpose of the link to not appear to the user; (3) Redundant Links with the same URL address which causes users to do additional navigation; and (4) Missing text labels on form controls, which results in the user not knowing the function or purpose of the form.
Ultimately, the Court ruled in favor of Thurston and required that The Whisper Lounge’s website comply with WCAG 2.0 AA.
Davis v. BMI/BND Travelware, No. CIVDS1504682
Davis (plaintiff) is a disabled person who was attempting to purchase luggage on a Colorado company’s website. The Court concluded that Title III of the ADA applied to Davis’ use of the company website because (1) he demonstrated that he wanted goods and services from a place of public accommodation, and (2) he displayed that a “sufficient nexus exists between defendant’s retail store and its website,” which directly affects Davis’ access to those goods and services.
During a hearing, the Court granted Davis’ request for injunctive relief and to enjoin the company from violating the ADA and Unruh Civil Rights Act. The Court also required the company to make their website “readily accessible to and usable by visually impaired individuals.” Failure to make their website accessible would result in the company having to terminate their website.
Most employers may not currently know whether their website is accessible to people with disabilities. If your company has not yet been hit with one of these complaints, it may seem like one is around the corner.
If you are concerned that your website or mobile applications might not be compliant with the ADA or the Unruh Civil Rights Act, please contact the attorneys at Palmer Kazanjian Wohl Hodson LLP.