The Americans with Disability Act (ADA) applies to all businesses in the United States. If your business is brick and mortar, you know all about the ADA rules covering things like wider doorways, ramp access, and accessible parking. 

However, many business owners have been surprised to learn that the same rules also likely apply to commercial websites. We say “likely,” because the ADA does not mention the internet, websites, or mobile applications. Remember, it was enacted in 1990… years before online access became so important to our daily lives. Read on to learn more about your obligations as a business owner to keep your website ADA compliant.

Why is website accessibility important? 

Think back to lockdown during the COVID pandemic in 2020. Imagine what life would have been like without online access. Would you have been able to : 

• Order groceries? 
• Connect with work colleagues? 
• Send your kids to online school? 

Luckily for most of us, we had access to the web. And for most of us, whether or not a website is “accessible” under the ADA, is not a problem. 

On the other hand, individuals with disabilities have often struggled to fully access websites.

As a business owner selling products and services to the public, it’s in your interest to make sure your websites are accessible. If everyone can access your site, you can increase customer satisfaction and sales.

Here are some examples of accessibility issues you might find on your website:

• Blind/Limited vision users: A sight-impaired user may rely on Alternative (Alt) Text on a website. Alt Text allows a screen reader tool to read aloud text that conveys the content or purpose of an image, like a chart or graph, or captions for a video or photo. 
• Deaf/Hard of hearing users: A user who is hard of hearing may rely on text captions for a video and would be unable to understand what is being communicated and engage on a commercial website without them.
• Paralyzed or limb different users: A person with a disability that limits their use of a mouse or trackpad may only be able to navigate a website through use of a keyboard and some websites are not designed for keyboard navigation.

In the most recent annual study conducted by WebAIM, an evaluation of home pages of the top 1 Million websites tested over 1 billion home page elements for accessibility. The study concluded that individuals with disabilities would encounter errors on 1 in every 21 home page elements. Check this link out for more details.

Such a high error rate shows that clearly, a user with disabilities is likely to encounter significant barriers when accessing these and other websites. 

What should a business do? 

• First, understand your compliance obligations with respect to the ADA and any state laws that impose website accessibility obligations. If you are not sure, seek legal advice.
• Next, evaluate your risk and consider this: more detailed regulations are coming, website accessibility lawsuits are on the rise, and even the Department of Justice (DOJ) has been enforcing ADA rules. 
• Keep in mind that the ADA allows a private right of action, meaning that a disabled individual could sue your business directly. 
• Finally, work with your web content designer to evaluate your website and identify what changes you can make so you are not at risk of losing potential customers because of accessibility issues.  Pay close attention to the WCAG and DOJ guidelines and seek the advice of a lawyer.

Keep reading for more tips on meeting your compliance obligation.

Does the ADA even apply to your business website?

Earlier we said that ADA compliance rules are “likely” to apply to your website. This is because different courts have reached different conclusions on this question. We know that the ADA applies to public spaces. The DOJ and some courts have said that commercial websites are public spaces and therefore ADA compliance is required. On the other hand, other courts have concluded that websites are not public space under the ADA. The United States Supreme Court has not been much help. It recently refused to hear a case, Robles v. Domino’s Pizza, LLC (discussed below) that questioned whether the ADA applies to commercial websites. 

Getting caught up in arguments on whether ADA compliance applies to commercial websites may not be the best use of your time, or money. 

In 2022 over 2,000 ADA website accessibility lawsuits were filed. These numbers are increasing. 

In Robles v. Domino’s Pizza, LLC, the U.S. Supreme Court denied review of an appeal of a lower court decision concluding that the ADA applies to Domino’s website, which was inaccessible to a blind man. 

After years of expensive litigation, Domino’s settled with the plaintiff in 2022.

The takeaway? Fighting ADA compliance may be bad for business, and it may make you a target for other potential lawsuits. 

Instead of spending money to fight a potential lawsuit, take a proactive move like designing a website to provide reasonable accessibility to customers with disabilities. And don’t forget, there are also many state laws that impose requirements related to website accessibility.

Finally, coming up next year the U.S. Supreme Court will issue a ruling in Acheson Hotels v. Laufer, a case that focuses on whether uninjured plaintiffs have the standing to bring ADA compliance lawsuits against businesses. That could mean that any citizen who visits your site and finds it lacking in compliance, whether or not it affects them personally, could sue your business. 

THE FINAL QUESTION: How do you make your business website ADA compliant?

In 2022, the DOJ released its “Guidance on Web Accessibility and the ADA.” This Spring, the DOJ began work on drafting regulations that will apply to the websites of government entities. Businesses should visit that website regularly and pay attention to any up-to-date guidance from the DOJ relating to website accessibility. 

In addition, the Web Accessibility Initiative is a great source of information for business owners and their web content people. Start with a basic “easy check” like one here. Watch the video at the top of the page for ideas on how to get started. 

The Web Content Accessibility Guidelines (WCAG) were developed in 1999. The WCAG, which are mandatory in some countries, are a single set of standards that businesses and governments can rely on for web content accessibility. The most recent version, WCAG 2.2, is expected to be released in the next few months. You can find the WCAG and revisions online.

Figuring out what an ADA compliant website looks like and how it should be designed is not the easiest task for you as a business owner. In years to come we will likely see more regulatory guidance to support businesses in this area of compliance. Until then, the term “reasonable accessibility” is one to focus on. To help you stay on the right path, keep the DOJ and WCAG guidance on hand as you develop your website. And finally, consider whether to engage technical or legal support to help navigate the process.

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Every effort is made to provide accurate, complete, and current information in Milestone Law Group’s blog.  However, Milestone cannot guarantee that there will be no errors. In addition, note that articles are current as of the date of original publication and therefore may no longer reflect the current state of the law.   

The information in our blog is shared for informational purposes, not to provide specific legal advice. Receipt of this material does not establish an attorney client relationship. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney. Please contact us if you have any questions.