There has been a growing conversation lately regarding website accessibility for people with disabilities. Despite the fact that nearly 20 percent of the population in the United States has a disability-nearly one in five people-website accessibility is rarely a consideration when developers create websites and apps. Adding conditions and parameters to website development costs money, but so does an inaccessible website in terms of resulting litigation and lost customers as clicks and page views are missed, inventory is not purchased, and reservations are not made. Advocacy groups want access, and businesses should want the customers. It is no surprise that litigation over accessibility filed by advocacy groups and individual users is rapidly increasing, and businesses are experiencing growing angst.
People with disabilities affected by website inaccessibility may have varying degrees of auditory, cognitive, neurological, physical, speech, and visual impairments. According to the National Federation for the Blind, there are over 7.3 million people in the United States alone who have varying degrees of blindness. The U.S. Census found over one million deaf people and over eight million who are hard of hearing. Neurological disabilities, including epilepsy, affect nearly one billion people worldwide. Color blindness in various forms affects approximately 1 in 12 men and 1 in 200 women globally.
In order to participate in the online community and in e-commerce, some people with disabilities can use assistive technologies and adaptive strategies to work around hindrances. Assistive technologies include screen readers that read webpages aloud, screen magnifiers to make text and graphics larger and easier to see, voice recognition software to assist with typing and commands, and scanning and switches systems that scan pages and allow the user to make a selection by hitting a switch. Adaptive strategies include resizing fonts, reducing mouse speeds, and using captions for audio content.
These technologies are helpful, but insufficient. They do not allow users to fully engage with webpages, precluding them from educational and commercial opportunities and social activities. Websites are simply not designed to work with these assistive tools. This issue was hot in the late 1990s and early 2000s but fizzled quickly, leaving out many users with disabilities.
Some countries passed laws and promulgated rules requiring accessibility, but the vast majority of requirements are for only governmental websites. Compliance by nongovernmental entities is regulatorily optional and often not a consideration when websites are built, leaving those with disabilities behind and leaving companies with a large, mostly untapped market.
The Americans with Disabilities Act (ADA) was passed in 1990 to prohibit discrimination and ensure equal opportunity for persons with disabilities in employment, government services, public accommodations, commercial facilities, and transportation. Although Internet service providers (ISPs) began to emerge in the late 1980s, the commercial Internet did not truly develop until the mid-1990s. The ADA did not contemplate Internet websites because the Internet was still in its nascent state when it was passed.
ADA Title III provides that, "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." Although private clubs and religious organizations are excluded, the ADA does include places of exhibition and entertainment, places of public gathering, libraries, galleries, service establishments, places of recreation, and places of education.
Websites are all of these things; therefore, they are places of public accommodation, and the ADA applies to them. However, the courts have not found footing on the application of the ADA to websites. The Department of Justice, the regulator for the ADA, has brought enforcement actions against websites for lack of accessibility but has neglected to promulgate rules outlining requirements for website accessibility. The DOJ instead has been using the World Wide Web Consortium's WCAG 2.0 Guidelines as a baseline for compliance with the statute in enforcement actions. While we await the DOJs rules regarding website accessibility and a consensus among the courts, it would behoove website developers and owners to abide by the WCAG 2.0 Guidelines to avoid a trip to the courthouse or an action by the DOJ.
Accessibility According to the Courts
According to a recent study conducted by Seyfarth Shaw LLP, over 240 cases alleging inaccessibility have landed in federal court since early 2015. However, the cases have been rolling in since 2000 and show no signs of stopping. Courts disagree as to whether the ADA applies to web-based businesses. Many have determined that websites are places of accommodation and must be accessible to those with disabilities. Others have determined that there must be a nexus between the online access to services or goods complained of and a physical place.
The first major case to allege inaccessibility as a violation of the ADA was Access Now v. Southwest Airlines , 227 F. Supp. 2d 1312 (S.D. Fla. 2002). The plaintiffs alleged that Southwest's technology violated the ADA because the goods and services offered on its website were inaccessible to blind persons using a screen reader. The court granted Southwest's motion to dismiss, holding that the ADA covered only physical places. The plaintiffs failed to establish a nexus between the website and a physical, concrete place of public accommodation to which their access was impeded, such as a particular airline ticket counter or travel agency.
In National Federation of the Blind v. Target Corp. , 452 F.Supp.2d 946 (N.D. Cal., 2006), the plaintiffs alleged that blind people were unable to access much of the information on the defendant's website or make purchases from its website in violation of the ADA. The Northern District of California certified a nationwide class action and denied, in part, Target's motion to dismiss. It upheld NFB's argument that websites like Target.com must be accessible to the blind but reaffirmed the requirement that there be a "nexus" between the Internet services and a physical place in order to present an actionable ADA claim. The use of the "nexus" approach to the ADA's applicability to the Internet would cover places of business with physical stores, such as Target. However, stores such as Amazon.com that have no physical storefront may not be covered under such an approach. Further, the plaintiffs failed to state a claim under the ADA to the extent that the website offered information and services unconnected to the retailer's stores. The case eventually settled. Target agreed to make changes to the website and pay attorney's fees and costs in the amount of $3,738,864.96.
In 2012, the District of Massachusetts disregarded the theory that a brick-and-mortar store is necessary for the ADA to apply. In National Association of the Deaf v Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass., Jun. 19, 2012), the plaintiffs alleged that Netflix failed to provide equal access to its video streaming website for deaf and hearing-impaired individuals by offering only a limited amount of streaming content available with closed captioning. In denying Netflix's motion for summary judgment, the court held as irrelevant the fact that the ADA does not include web-based services as a specific example of a public accommodation. The court determined that Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations, and that the plaintiffs must show only that the website falls within a general category listed under the ADA. Later, Netflix signed a consent decree, agreeing to increase access for those with hearing impairment.
The 9th Circuit affirmed the stance that the ADA applies to only physical places in a case against eBay. Earll v. eBay, Inc., 2015 WL 1454941 (9th Cir., Apr. 1, 2015) The plaintiff alleged that eBay's voice-based verification process prevented her from registering as a seller in violation of the ADA. The court affirmed its prior decision in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir., 2000), wherein the court determined that the ADA requires that there be some connection between the good or service complained of and a physical place.
In 2014, the National Federation of the Blind sued Scribd, an online subscription library and open publishing platform, because its website was nearly completely inaccessible to blind people. Scribd's motion to dismiss was denied. Nat'l Federation of the Blind v. Scribd, Inc., 2015 WL 1263336 (D. Vt., 2015). The District of Vermont found that the test is whether the services offered by the website properly falls within any of the general categories of public accommodations listed in the statute. Scribd's services fall within the following categories: a "place of exhibition or entertainment," a "sales or rental establishment," a "service establishment," a "library," a "gallery," and a "place of public display or collection." Therefore, the plaintiffs sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation. The case settled in November with Scribd agreeing to completely rewrite its site so that software used by the blind could be used on documents within the site.
Also last year, two cases were filed in the District of Massachusetts against Harvard and MIT by the National Association for the Deaf. Nat'l Assoc. for the Deaf v. Harvard U., 3:15-cv-30023 and Nat'l Assoc. for the Deaf v. Mass. Inst. of Tech., 3:15-cv-30024 (D. Mass, 2015). The plaintiffs alleged that the schools discriminate against the hearing impaired by failing to caption online content they make available to the general public, including massive open online courses (MOOCs). As they do in many of these cases, the DOJ has filed a statement of interest in support of the NAD's claims, arguing that the ADA applies to websites. The cases are ongoing.
Most recently, a law firm in Pittsburgh recently sent out over 25 demand letters to realty and home-building companies threatening legal action over the inaccessibility of their websites, alleging inaccessible sites violate the civil rights of individuals with disabilities. The firm claims to have over 100 clients in 40 states who are plaintiffs or represented by demand letters.
Accessibility According to the DOJ
The DOJ announced in 2010 that it was considering amending its regulations implementing Titles II and III of the ADA to require website accessibility and sought public comment. Title II, applicable to government sites, was expected in early 2016 and was to be used as the model for Title III regulations. Disappointingly, the DOJ withdrew its Notice of Proposed Rulemaking on April 28, 2016, and issued a Supplemental Advance Notice of Proposed Rulemaking, soliciting additional comments. Title III, applicable to places of public accommodation, is expected in 2018.
Industry groups have been clamoring for the rules to be promulgated. For example, in April 2016, The National Association of REALTORS (NAR) sent a letter to the Department of Justice requesting that they finalize Title III rules. The letter cites the ad hoc rulemaking via Statements of Interest and enforcement actions as creating confusion for its membership as to the requirements for website accessibility.
In the meantime, the DOJ has filed statements of interest in numerous cases filed against website owners and entered a multitude of consent decrees against entities, including Peapod, H&R Block, and (somewhat ironically) the National Museum of Crime and Punishment. In those decrees, the DOJ uses the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA Success Criteria developed by the World Wide Consortium as their guidance in proceedings. It is important to note that some DOJ settlements have given websites a mere 120 days to comply with those guidelines.
WCAG 2.0 Guidelines
Developed by the World Wide Web Consortium (W3C), whose members include Microsoft Corporation, Facebook, and Google, Inc., among others, the WCAG 2.0 guidelines provide a detailed standard for web content accessibility. Although highly technical and clearly written for web developers, counsel for entities with websites should be familiar with the guidelines and advise clients on their use. There are 12 guidelines organized into four principles: perceivable, operable, understandable, and robust. Each guideline has testable success criteria at three levels: A, AA, and AAA. The DOJ favors the AA Success Criteria. Following the guidelines will make websites more accessible to persons with disabilities who use assistive technologies such as speech-to-text software, scanning and switches, etc.
The user should be able to perceive the information and user interface components using their available senses. For example, developers should provide text alternatives for nontext content. This can mean providing captions for audio content and adding in audio descriptions of visual details in video. Sign language can also be added for audio content, including signed descriptions of sounds that are not speech. Developers should create content that can be presented in different ways, including by assistive technologies, without losing meaning.
Websites should have a site map with headings, lists, and tables that are marked-up properly. Designers can make it easier to see and hear content by separating background from foreground using sufficient contrasting colors and not relying on color as the only way of conveying information or identifying content. Text should be resizable up to 200 percent without losing information, and images of text should be resizable, replaced with actual text (i.e., using actual text instead of pictures of words), or avoided where possible.
The features of the website should be operable by either assistive technology or adaptive strategies. This means making all functionality available from the user's keyboard so that anything the mouse can do, the keyboard can also do. This allows programs such as speech-to-text to simulate keyboard functions. In addition, keyboard functions, such as tabbing across options, should not get lost in the content. It should be clear where the user is on the page. If there is scrolling content, the user should be able to pause or stop the text, and if there is a timed session and it times out, the user should be able to log back in within a short period time without losing data or losing their place on the page.
To help avoid seizure in some epileptic users, avoid unnecessary flashing lights. Seizures triggered by flashing lights occur when the frequency flashing is between five and 30 flashes per second. Other factors can include brightness of the lights and contrast with background lighting. Avoid video content that may cause seizures.
Users should not only be able to understand the content, but also how to navigate the pages and the website as a whole. Developers should make the text readable and understandable. This means identifying within the code the primary language of a web page, such as English, Arabic, or Chinese. Use clear language and provide definitions of unusual words, phrases, or abbreviations. Further, content should appear and operate in predictable ways. Modes of navigating the pages and sites that repeat on multiple pages should be in the same place on each page. Features that appear on multiple pages should be labeled identically on each page.
Lastly, webpages should be designed to assist users in avoiding and correcting mistakes. Instructions and error messages should be clear and unambiguous. Error messages should also contain suggestions for correcting the error. Users should be given the opportunity to review and correct submissions, or even reverse submissions.
Content must be robust enough that it can be accessible by a wide variety of assistive technologies and adaptive strategies, even as assistive technologies improve. To do this, developers should maximize compatibility with current and future user tools by ensuring that page mark-ups can be reliably interpreted by assistive technologies and by providing name, role, and value for nonstandard page features.
Building accessibility into a website from the beginning is less costly than trying to rearchitect the site after litigation ensues. By counseling clients from the beginning to use the WCAG 2.0 guidelines, clients can avoid having to go back and correct inaccessible pages and features post-litigation or post-rulemaking. Although the DOJ has not issued guidelines on accessibility, and will not for some time, it has made it clear through consent agreements and statements of interest that the ADA applies to websites and that they will enforce it.
As outlined above, advocacy groups have become more active in filing lawsuits, and business clients are losing customers and users if inaccessible websites shut out disabled potential customers. As more of our lives go online and Internet life becomes ubiquitous, it is unlikely that the ADA will continue to be interpreted in some jurisdictions to require a physical place to apply. The mandate is therefore clear: whether connected to a physical place or not, websites must be ADA accessible, and the best way thus far to accomplish that is to follow the WCAG 2.0 guidelines.