Is Your Website ADA Compliant?

We have all been dramatically impacted by the ‘digital revolution’ – mostly in positive ways. This past year saw almost $200 billion in retail purchases over the internet in the United States alone. Our eReaders, smartphones and tablets are necessities, not mere luxuries. Internet access is just like any other utility – no different from water, gas or electricity. But many commercial websites and electronic devices are inaccessible for the 50 million disabled Americans and many seniors. As a result, countless businesses are effectively slamming their doors to new customers while opening themselves to liability under the Americans with Disabilities Act (“ADA”).

The ADA is a Federal civil rights law that seeks to facilitate full participation in all aspects of daily life by prohibiting discrimination against people with disabilities. Just about any business - regardless of size - that provides goods or services to the public is subject to the law. The Civil Rights Division of the Department of Justice (DOJ) implements and enforces the law through its regulations which were most recently updated in 2010, the 20th anniversary of the ADA. The revised Standards for Accessible Design require generally that commercial and governmental building facilities comply with the new 2010 standards by March 15, 2012.

Over the years, DOJ enforcement efforts have focused on barriers posed by the physical world – street curbs, building entrances, TTY terminals for lobby pay phones. Indeed, most businesses believe that the ADA only applies to their physical buildings; but that is a misconception. As far back as 1996 the DOJ asserted that entities covered by the ADA are required to provide effective communication, regardless of the medium used. Even then the DOJ claimed that the ADA’s expansive nondiscrimination mandate requires that businesses using the internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means.

Court opinions are not so unified. Some have held that only physical places are subject to the ADA and websites are not physical places. In 2005, the National Federation of the Blind (NFB) sued Target, alleging that the design of the Target website made it impossible for visually impaired users to purchase products, redeem gift cards or locate stores, even through use of assistive screen readers.

Target moved to dismiss the case asserting that its online presence, target.com, was not a physical place and therefore not subject to the ADA. But the court held that the “nexus” between the physical stores and the inaccessibility of the online services was sufficient to render the website subject to the ADA. Based upon this decision, Target settled the case. Not only did Target agree to make its website accessible in accordance with the NFB’s Nonvisual Accessibility Web Certification Program and submit to accessibility testing for three years. Target also agreed to establish a $6 million settlement fund to compensate the disabled members of the class action. The court’s decision only denied Target’s motion to dismiss, thereby clearing the way for the NFB lawsuit to continue. But the legal opinions expressed by the judge were groundbreaking.

Next time: Recent Enforcement Activities.

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