Annotations

Website Accessibility and the ADA: An Update

We recently wrote about the Americans with Disabilities Act (ADA) and its application to online businesses. In the March 22, 2013 issue of the Wall Street Journal, Joe Palazzolo reported that the government might be taking a proactive role in addressing online-accessibility issues.

The U.S. Department of Justice is expected to issue new regulations on website accessibility later this year that could take a broad view of the ADA’s jurisdiction over websites. [¶] That could mean websites will be required to include spoken descriptions of photos and text boxes for the blind, as well as captions and transcriptions of multimedia features for the deaf, said Jared Smith, associate director of WebAim [http://webaim.org/], a nonprofit group that trains and evaluates companies on Web accessibility. [¶] Mr. Smith also advises companies to ensure that people with motor disabilities can navigate websites without the use of a mouse, and to use plain language and a strong design to aid people with cognitive or intellectual disabilities.

In our previous post, we said that court decisions that apply the ADA to business websites are generally outliers, but the Journal cites two recent cases, National Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D.Mass.2012),  and National Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D.Cal.2006), that might indicate a trend towards a judicial expansion of the ADA’s reach. As Palazzolo explains:

Some courts have held that [the] ADA covers only physical spaces. The Target case … marked the first time a federal district judge ruled that the law applies to websites when they act as a gateway to a brick-and-mortar store. [¶] Last June a federal district judge in Massachusetts became the first to rule that the ADA’s accessibility requirements apply to website-only businesses.

Companies must consider the costs associated with the uncertain state of the law, and they are skeptical of the courts’ interpretation of the ADA.

Lawyers who represent companies in ADA cases say an expansive reading of the law could expose their clients to a rash of frivolous lawsuits. They also argue that companies face a considerable burden in ensuring their websites are compatible with the latest technologies for aiding the disabled, such as software that reads aloud text on the screen.

According to the article, implementing accessibility features early in website development is cheaper than retrofitting. Thus, younger companies designing new websites should seriously consider integrating accessibility features on the front end, and well-established and well-funded companies should expend capital on retrofitting their websites. From a planning perspective, companies must also consider the potential cost of litigation and the benefit of having satisfied customers.

[A] Miami-based lawyer who represents companies in ADA matters[ ] said clients are increasingly seeking counsel on website accessibility before they are approached by lawyers … because they want to avoid bad publicity and increase their market share.

In terms of policy, the question is whether government regulation offers the best solution or whether a company’s interest in growing market share and improving its “bottom line” will incentivize self-regulation.

“It’s in everybody’s interest to make sure that disabled people have access to websites, but whether the law is the avenue to achieve that change is another question,” said Matthew Kreeger, who represented Target. “It’s kind of a blunt instrument.”

The answer might lie somewhere in the middle—an even-handed, negotiated regulation that nudges businesses into making decisions that improve accessibility and increase their potential customer base. Ultimately, those decisions could lead to increased revenue—a winning proposition for both businesses and the government treasury.