All companies and organizations with a website—whether for internal use or publicly facing—must ensure that their website complies with the Americans with Disabilities Act (ADA). Website owners are increasingly facing lawsuits filed on behalf of visually impaired, hearing-impaired, and other disabled individuals who are unable to access website features.
In a recent webinar, Venable partners Jean-Paul Cart and Nicholas Reiter discussed how simple updates in line with the Web Content Accessibility Guidelines (WCAG) can help organizations avoid these types of lawsuits and answered questions from the audience.
Q: Is there a template for what should be in the web accessibility statement?
A: There is no one-size-fits-all approach for an accessibility statement, but most statements should include, at a minimum:
- The organization's dedication to making its digital content accessible to disabled persons
- A high-level description of the organization's efforts to improve the accessibility of its digital content
- The accessibility standard that the organization applies to its digital content, e.g., WCAG 2.0 AA or WCAG 2.1 AA
- An email address, phone number, and/or other methods for contacting the organization in the event an individual encounters difficulty accessing the organization's digital content
Q: Where should the accessibility statement be displayed on a website?
A: We recommend having a separate link labeled "Accessibility." The goal is to make it as easy as possible to locate. It can also help to include a non-visible (or hidden) link at the top of the page that a screen reader (used by the visually impaired) would identify and immediately flag for the user.
Hidden links can be helpful, especially if they are placed near the top of a site so that the screen reader will pick them up right away. Keep in mind, however, that it isn't always the visually impaired future plaintiff looking for websites to target. It is very likely that many plaintiffs' lawyers try to find websites to direct their clients to, and they likely don't use screen readers.
Q: To what extent do WCAG standards and levels translate (if at all) into the legal basis for an ADA claim?
A: The WCAG standards are important because they are essentially the only yardstick for accessibility that we have to work with. The Department of Justice (DOJ) considers WCAG standards to be the best measurement of accessibility, as it mandates that various federal government websites be designed in accordance with WCAG principles. But the ADA itself does not set out a legal standard, and WCAG compliance is not legally required. Many years ago, plaintiffs would allege in complaints that the target website did not comply with WCAG. That strategy backfired, and many complaints were dismissed because WCAG is not the law. Yet, every settlement that includes remediation references WCAG, and every plaintiff looking for their next target will be accessing WCAG compliance.
Q: We run routine WCAG checks using online tools (roughly each quarter). Is it more advantageous to keep a written record of these checks and their results (to make it clear you were conducting routine audits), or could it be more harmful if it is shown that there were small issues each time that you weren't able to remediate?
A: Organizations must weigh the benefits of routine testing (and records of such testing) versus the downside of creating discoverable material that may be harmful in the event of a lawsuit. In most instances, we recommend maintaining the testing records because such records are often compelling evidence that an organization is complying (or at least trying to comply) with the ADA. One solution is to coordinate with legal counsel about the legal risk associated with the results of the WCAG compliance checks. If legal counsel is requesting the compliance checks and offering legal advice in connection therewith, it is very likely that the records will be excluded from discovery pursuant to the attorney-client communication or attorney work product privileges.
Q: Are business-to-business companies and business-to-consumer companies treated differently in most of these cases?
A: Generally, business-to-consumer websites are at a much greater risk of being targeted. The "injury in fact" standard requirement can make it much more difficult to pursue a claim in the business-to-business context. A business-to-business website could certainly still be targeted, and the "place of public accommodation" analysis would be largely the same, but such sites are not the low-hanging fruit that the plaintiffs' lawyers are looking for.
Q: Does the ADA apply to nonprofit websites?
A: Maybe. The answer depends upon the nature of the nonprofit organization's website. In many jurisdictions, a purely informational site for a nonprofit organization that does not involve potential commercial transactions may not fall within the purview of the ADA. However, if the nonprofit organization's website sells merchandise for fundraising purposes or involves other potential commercial transactions, then the ADA will likely apply.
Q: How does this affect trade associations?
A: This depends on the type of trade association and the nature of its work. If the trade association comprises entities rather than individuals, it is less likely to have an ADA problem. But if it provides testing, licensing, training, insurance, or other services directly to individuals, it should follow our advice for business-to-consumer websites.
Q: Would the website of a solo law practice, which has no physical office, be a "place of public accommodation"?
A: 42 U.S. Code § 12181(7)(f) specifically lists a lawyer's office as a place of public accommodation. Whether that applies to a website for a solo practitioner without a physical office will depend on the case law in the particular jurisdiction at issue.
Q: Any possibility of such claims being covered by liability insurance?
A: It is possible to obtain insurance coverage for ADA website accessibility claims, but no business should assume that it is covered. Coverage can be obtained through certain cyber policies, sometimes under the theory that the alleged ADA violation also violates disclosure requirements in various privacy laws. Coverage can also be obtained in some cases through employee-related accessibility provisions, if the claim relates to accessibility barriers involving employees.
Q: Has the Biden administration's DOJ indicated whether it will pursue ADA accessibility issues?
A: The DOJ has stated that it deems website accessibility to be an important issue. We expect that a rulemaking process will eventually move forward on this issue. In terms of direct action against businesses, we should note that the DOJ has taken action. But its actions have been largely related to COVID-19, as it has primarily sought to ensure accessibility in connection with COVID-19 treatment and vaccination.
Q: If there is no audio in a web video (no music, sound effects, or voiceover), do you have to include closed captioning noting that there is no audio?
A: Legally speaking, probably not. The justification for this is that there is no "content" that is inaccessible in such case, because the hearing-impaired user is not missing any content. However, this is the type of thing that might still cause a serial plaintiff (and his or her attorney) to file suit. If it is easy to add the closed captioning, then it might be worth considering for this reason only.
Q: Is there any qualifier for which videos need to have closed captioning available?
A: Any videos related to a potential commercial transaction should have closed captioning available. If e-commerce is conducted via the site, or if there is information within the site related to a commercial transaction at a brick-and-mortar location, then the video very likely should have closed captioning.
Q: Our company routinely captures content and licenses it to third parties to distribute on their websites. Do you have suggestions on what's reasonable for representations and warranties for indemnifications? Is it usually on the content provider to ensure compliance for the program and the website operator for the site?
A: The representations and warranties for indemnification related to the content is often subject to negotiation. It is very difficult to say what is "standard" in this regard. Note, though, that a website operator will generally be responsible for access barriers within its website, even if the access barriers relate to third-party content. This is especially the case when the third-party content relates to a potential commercial transaction for the website operator's business.
Q: What does ADA compliance look like for schools?
A: Educational institutions are subject to a variety of different (and often more stringent) rules for accessibility. The same commercial transaction requirement is not required, because of the rules for accommodating disabled students. Because the rules vary considerably by jurisdiction and the type of school (e.g., private, public, and whether the school accepts federal funding), we encourage you to contact either of the presenters for more information.
Q: What are the different considerations for companies being subject to DOJ enforcement of ADA violations versus private litigants filing lawsuits based on those same claims?
A: The most typical difference is the motive of the prosecuting party. DOJ is often focused on obtaining injunctive relief, i.e., removing access barriers within a website, whereas some private litigants may be focused more upon negotiating a settlement payment first and figuring out an agreement regarding injunctive relief later. This is not to say that all private litigants are simply seeking a payday. Some plaintiffs will negotiate more ardently about the remediation of the website, while others will not. But the different motives will often dictate the organization's strategy for how to resolve the matter.