Is Your Website ADA Compliant? (Part II)

As previously discussed, the Department of Justice (DOJ) requires, with some exceptions, that businesses subject to the Americans with Disabilities Act (ADA) modify their physical buildings to comply with the DOJ’s revised Standards for Accessible Design by March 15, 2012. The DOJ also recognized the critical role the internet plays in the personal, professional, civic and business lives of all Americans, noting that the inability to access websites shuts disabled consumers out of the dynamic electronic marketplace, access to information, education, social media and entertainment.

While the courts are still divided on the subject, the DOJ asserts that the disadvantages resulting from website inaccessibility discriminate against the disabled in violation of the ADA. Although poised to issue its formal rules for ADA website/internet accessibility later this year and in 2013, armed with the groundbreaking Target case, both the DOJ and disability rights advocacy groups have stepped up their enforcement activities and public accessibility lawsuits with respect to devices as well as website accessibility.

For example:

• As part of a pilot program, Arizona State University (ASU) distributed the Kindle DX to students in one specific class to assess the role of electronic textbooks and reading devices in the classroom. Although the Kindle DX featured text-to-speech (TTS) technology could read textbooks aloud to blind students, the device’s menus and controls lack TTS. Blind individuals could not configure the settings or even turn on the TTS feature, let alone select or purchase books from Amazon’s Kindle store. The American Council of the Blind (ACB) filed suit and complaints with the DOJ and US Department of Education alleging violations of both the ADA and the Rehabilitation Act of 1973. Pursuant to a settlement agreement, ASU committed to providing access to all programs and facilities for students with disabilities and Amazon agreed to make improvements to and progress in the accessibility of the Kindle.

• In March, 2011, the NFB asked the DOJ to take action against New York University and Northwestern University for adopting Google Apps for Education, a free cloud-based application suite providing a variety of communication and collaboration tools to students and faculty such as Gmail, Google Calendar, Google Talk, Google Docs and Google Sites. The NFB asserted that each application contained significant accessibility barriers for blind people utilizing screen access technology, which converts what is on the computer screen into synthesized speech or Braille. Google’s corrective actions have not met the NFB’s requirements and this case is still pending. Although the lawsuit only names New York University and Northwestern University, many other academic institutions will be affected by the ultimate outcome.

Although Title III of the ADA does not allow plaintiffs to recover damages for accessibility violations, it does provide injunctive relief and reimbursement of attorneys’ fees. And some states do permit damages for violation of their laws.

For example, California where the Target suit was brought, has two difference statutes addressing disability access claims. The state’s Unruh Civil Rights Act provides for damages of $4,000 per violation or three times the amount of the victim’s loss, whichever is greater. California’s Disabled Persons Act provides for damages of $1,000 per violation. Plaintiffs need not prove intentional discrimination.

Putting aside any argument that providing equal access may be the right thing to do, between attorneys fees and state settlement funds, real dollars are at stake. Dollars that could be put to better use marketing and selling goods and services to a very large new market.

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