With COVID-19 increasing online traffic, it’s more important than ever to ensure your website is accessibility-compliant with the Americans with Disability Act. Use these resources to be proactive about compliance.
When the Americans with Disabilities Act (ADA) became law in 1990, it was long before the internet became an engrained part of everyday life. While early litigation focused on physical access, such as access to places of public accommodation such as stores and offices), claims today often take issue with online access barriers such as websites that are incompatible with screen-reading software.
In October 2019, the U.S. Supreme Court declined to hear Domino's appeal of a lower court ruling on an ADA website accessibility claim against the pizza company. With the Supreme Court and Congress failing to establish limitations on these types of claims to date, there has been a surge in ADA website accessibility litigation.
That trend is likely to accelerate, especially with the increase in online business due to the COVID-19 pandemic.
Given the circumstances, it is more important than ever to make sure your agency's website is sufficiently accessible to persons with disabilities. Although neither Congress nor the Department of Justice have yet established clear rules or regulations on what is required, many jurisdictions have looked to the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, published by W3C Web Accessibility Initiative, as the industry standard. Some plaintiffs even use automated tools to search for websites that fail to meet these standards.
Thus, although agents are not under an express obligation and may even be in material compliance without meeting every standard, trying to meet WCAG standards is key to avoiding unwanted website accessibility disputes.
“Accessibility does not guarantee that you won't be sued, but it makes it a lot less likely and it will help defend your case in that you were working to make your agency website accessible," says Larry Neilson, CEO and managing partner of Neilson Marketing Services and Programbusiness.com. Third-party vendors like Neilson Marketing offer services intended to help businesses try to meet WCAG standards.
Ideally, website accessibility should be addressed both in the initial development and ongoing maintenance of a business website. Some web developers may even offer guarantees or assurances that a newly developed website will conform with current WCAG standards. Changes or updates to a website and its content, of course, could require further consideration. And websites that did not address accessibility at all when developed present additional challenges.
To that end, some vendors offer accessibility overlay toolbars or plugins that can help improve accessibility on existing sites. While there has been some recent criticism of whether certain of these overlays are adequate, they may still prove helpful tools in achieving compliance and avoiding litigation.
It is important to remember that simply adding an accessibility overlay toolbar or working with an outside vendor is not a foolproof defense against legal claims. At the same time, making reasonable efforts should not only help to avoid or defend against any claims—it also makes good business sense.
With approximately 12 million people age 40 or older in the U.S. having vision impairment, according to the Centers for Disease Control and Prevention, Mr. Neilson often asks businesses a simple question: “Why would you want to exclude such a large customer base before they even know anything about you?"
ADA Compliance Resources
Over the past several years, the Big “I" Office of the General Counsel and the Agents Council for Technology (ACT) have provided a variety of resources on this topic with links to some key resources below. A webinar is also in development.
The web-based ACT guide “ADA & Accessibility: What You Need to Know" is a crucial starting place and includes a list of potential website accessibility service providers.
Other resources include:
Use these resources to be proactive—not only to increase the awareness of your agency to a wider array of potential customers, but also to ensure you take steps to prevent potential accessibility disputes.
If you have any further questions, please feel free to contact Ron Berg, Scott Kneeland or Eric Lipton.
Ron Berg is executive director of the Agents Council for Technology (ACT). Eric Lipton is Big "I" senior counsel.
