By Caroline J. Berdzik
All businesses need to be aware of the proliferation of website accessibility cases.
In addition to protecting workers with disabilities, the Americans with Disabilities Act also provides that “no individual shall be discriminated against on the basis of disability in the full and equal employment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”
Private businesses that provide goods or services to the public are protected by the ADA and its requirements.
Website accessibility applies to blind and visually impaired individuals who need specialized software to access and navigate websites.
Websites that do not have software, such as screen reader technology, may expose themselves to liability.
Although not formally adopted by the courts, WCAG 2.0 AA provides best practices for accessibility.
The four main principles for accessibility are that it is perceivable, operable, understandable and robust.
In April 2016, the U.S. Department of Justice issued a supplemental advance notice of proposed rulemaking that would have expanded potential accessibility claims to Web content and not just websites and would look to make WCAG 2.0 AA the standard.
There was also discussion about providing businesses with time to comply and making the burdens less onerous on small businesses.
With the change in administrations, it is not known what portions, if any, of what was discussed in the proposed rule would make it to final regulations. It is anticipated that the DOJ will issue regulations for website accessibility in 2018.
In the meantime, many cases are being filed (approximately 240 since 2016) and these cases have had very different outcomes depending on the court or the judge, which makes it difficult for companies to assess the risk.
The main question in these cases is whether a website is a place of public accommodation subject to the ADA’s protections.
While this important issue is hashed out in the courts and while we await guidance from the DOJ, best practices would point to auditing a company’s website to ensure compliance with the WCAG 2.0.
Further, any new websites or content should have technical specifications that would render it accessible to avoid potential issues.
Caroline J. Berdzik is a partner with Goldberg Segalla LLP in Princeton, N.J. She devotes her practice to helping corporate clients navigate employment law issues from proactive counseling through dispute resolution and trial. Her clients include transportation companies. She can be reached at cberdzik@goldbergsegalla.com.
