by Giles Judd
Although private actions against companies for the failure to ensure access to their websites for individuals with disabilities have increased significantly in recent years, both Congress and the Department of Justice (DOJ) have yet to provide clear guidance as to what constitutes compliance under the Americans with Disabilities Act (ADA). Given the potential financial consequences facing a business which fails to provide equal access – including significant damages and attorneys’ fees – this lack of statutory or regulatory guidance can be quite problematic.
How, then, can you ensure that your company is protected against a potential – and likely imminent – ADA website accessibility claim? The safest answer: make certain that your company’s website complies with WCAG 2.0 (now 2.1), Level AA accessibility standards.
Web Content Accessibility Guidelines, or WCAG, are a series of standards set forth by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). WCAG 2.0 has three levels of compliance: 1) Level A (the lowest and least strict); 2) Level AA (the middle ground); and 3) Level AAA (the highest and most strict). While not adopted as law, these guidelines have nonetheless shaped the course of negotiations in website accessibility actions.
In 2013, the DOJ joined in the suit between the National Federation of the Blind and H&R Block. A consent decree was entered into in which the tax company agreed to have its website meet, at a minimum, WCAG 2.0, Level AA, standards. Similarly, in 2015, the DOJ reached a settlement with the National Museum of Crime and Punishment, in which it was agreed that the museum’s website would conform to WCAG 2.0, Level AA, standards.
Earlier, in 2010, when the DOJ announced Advance Notice of Proposed Rulemaking, 1190-AA61, it appeared as though the DOJ would revise the regulations implementing Title III of the ADA, and finally provide some much-needed guidance on website accessibility standards. Given the consent decrees which followed, it was expected that WCAG 2.0, Level AA, compliance would become the norm.
However, the DOJ has since withdrawn the Advance Notice of Proposed Rulemaking and, therefore, the applicable legal standard for compliance is still unclear. Nevertheless, in a letter to Congress, dated September 25, 2018, the DOJ emphasized “that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.” This letter simultaneously confirms that website accessibility is mandated by the ADA, yet declines to provide the acceptable standards for ensuring compliance with the statute.
This apparent confusion offers no safe harbor for companies, and ADA website accessibility suits have not decreased in number. Courts have been reluctant to dismiss cases, and almost all suits proceed to settlement. Further, the court of public appearance makes fighting such a case particularly dangerous for the reputation of any company.
Therefore, the best course of action is avoidance – and this is best achieved by ensuring that your company’s website meets WCAG 2.0, Level AA, accessibility standards. While not the law, previous consent decrees have established this as an acceptable guideline, and a federal court would likely be satisfied by a company’s proactive and voluntary compliance with these standards. Further, compliance would likely deter a predatory plaintiff’s attorney from ever bringing suit.
Most importantly, though, ensuring that your company’s website meets WCAG 2.0, Level AA, accessibility standards makes good business sense. You want to maximize your potential customer base, and providing access to all individuals, including disabled individuals, is both socially and economically prudent. Talk to a Weintraub Tobin attorney and find out more about how our firm can help your business with its compliance needs.