The World Wide Web Consortium, known as W3C, created and is hosting ongoing development of WAI, the Web Accessibility Initiative. Why do you care? Because of ADA and your website or app.
If you attended our Fair Housing Event with Fennemore Craig attorneys Alexis Glascock and Bruna Pedrini you will remember hour 2 was dedicated to ADA and we touched on the issue of website compliance with ADA. The point made was, yes websites need to comply with ADA, there are no clear rules, even the Department of Justice website does not comply since some standards cannot be implemented due to technology lags, ADA lawsuits are increasing.
If you were unable to attend the event, you can access the video of this event in 3 separate 1-hour segments. Part 1 is Fair Housing, Part 2 is ADA, and Part 3 is Disparate Impact. Go to www.weservgad.org, click on Videos to access these and other videos of GAD events.
Lawsuits are indeed increasing and there is still no guidance or standards from DOJ and in fact, last Fall they rescinded some of their previous guidance.
The Department of Justice sent a letter regarding this issue to Congress in September 2018. The tone of the letter seems to be that DOJ does not want to issue specific rules because they wish private business to use the tools that work best for them to comply with ADA. In other words, private business has flexibility. Here is an excerpt from the letter that sums up DOJ’s viewpoint:
Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.
That’s fine and business in general may even applaud the acknowledgement that there may be more than one way to meet ADA requirements, all of which are equally effective, but the courts seem to be on a different tract.
The lawsuits center around WCAG 2.0 and 2.1 levels of website and app accessibility. The World Wide Web Consortium first released their version of Web Content Accessibility Guidelines in 1999. It was, and continues to be, an international collaboration devoted to removing barriers to the internet for persons with disabilities. That was WCAG 1.0.
Fast forward to 2008 and the new guidelines of WCAG 2.0 with 61 criteria for web accessibility. With 2.0 came government rules for compliance. In June 2018, WCAG 2.1 was released adding another 17 points to the criteria. These new criteria added items to include people with low vision, cognitive disabilities, learning disabilities and added mobile technologies.
W3C is working on the 3.0 version now and plans intermediary updates between now and the release of 3.0, mostly focusing on mobile apps.
The W3C standards and their quick reference were last updated January 2019.
The Department of Justice’s withdrawal of their 2017 Advanced Notice of Rulemaking and their September 2018 letter, essentially passed the task of website and app accessibility rulemaking back to Congress. And that is what has prompted the lawsuits.
In January 2019 the Ninth Circuit held that Title III applies to websites and mobile applications in Robles v. Domino’s Pizza. That decision reverses the District Court’s dismissal of the lawsuit that stated Domino’s Pizza violated ADA and California’s Unruh Civil Rights Act.
Mr. Robles is a blind man who attempted to order pizza from the Domino’s Pizza site, but his screen reader software was unable to read the website. One of the issues I have with this case is the assumption by the Court that all screen reading software behaves the same. By my count there are currently 36 screen reading software products on the market today.
My question, and one I hope DOJ will address is, does compliance with ADA mean a website must be readable by every screen reading platform on the market now, in the past and in the future? This seems to me to be a rather large barrier for business both in terms of the physical and the expense. The ADA (Title III) has a provision for “readily achievable” and reasonable cost of accommodation. In some cases, the burden and cost of retro fitting a physical location to meet ADA falls to the person occupying and using the facility. I would think that same premise comes into play here. It is impractical to assume that every website and app will be readable by every screen reading software product past, present and into the future. The Court failed to even consider this question.
The Ninth Circuit rejected the premise that providing a telephone hotline is a sufficient alternative method for a company to comply with ADA for customers with low vision or who are blind.
The other question before the Court related to due process. Domino’s Pizza contended that holding them liable violates their due process rights because there are no clear standards for compliance. The issue specifically revolved around the plaintiff asserting the Domino’s Pizza website and app did not comply with WCAG 2.0. The District Court recognized WCAG 2.0 as a private standard, not regulation or law. Because of this if DOJ uses WCAG 2.0 as a standard, they have not provided “fair notice” and so Domino’s Pizza was not held liable.
The Ninth Circuit reversed this view and held that Domino’s Pizza has had “fair notice” since 1996. The phrases revisited were the requirements of ADA for “auxiliary aids and services” and “full and equal enjoyment”. In fact, the Court held that ADA’s flexibility is desired and specificity is unnecessary.
The Court concentrated its decision around Domino’s physical sites, their website and app. This is a continuation of court holdings at the District and Circuit level for several years now. The Court maintained the ADA applies to the services of a public accommodation, not in a public accommodation.
In the end the Court did not rule on whether website inaccessibility also means physical location site inaccessibility. What is clear is that if the business has a physical address its website and mobile apps are subject to the same ADA accessibility standards.
The Court basically ruled businesses can be sued under ADA on accessibility claims regarding their website and mobile apps. The Court failed to rule on whether Domino’s website and mobile app comply with ADA and they failed to give guidance. Instead the Court remanded the case back to the District Court with instructions “…to decide in the first instance whether Domino’s website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates.”
The upshot of this is to work closely with your attorney, insurance agent and IT provider on implementing WCAG 2.0 and 2.1 levels into your website and your mobile app, and be prepared. This type of ADA lawsuit is being used by unscrupulous attorneys in the same way ADA accessibility was used in past years at physical locations. In some cases, the plaintiff isn’t handicapped at all and in fact the plaintiff is a self-described “tester”. They target small businesses and “settle” the lawsuit forcing the small business to incur costs of settlement because cost of defense is too high.
One thing is clear, Congress abdicated its responsibility to make the law, so the agencies and courts are filling in the blanks. One would hope Congress will soon take back their Constitutional responsibility to make the laws, taking back the responsibility given them in the Constitution so citizens will once again have a voice in the laws that rule them daily.