Title III of the Americans with Disabilities Act (“ADA”) applies to all places of public accommodation (businesses open to the public). The federal circuits are somewhat split on whether the ADA applies to websites, and whether such websites must have a nexus to physical structures. Many recent cases, however, are trending toward requiring website accessibility (see below discussion of a recent summary judgment ruling out of California), and the Department of Justice (“DOJ”) has previously indicated that Title III of the ADA applies to websites that meet the definition of a public accommodation.
The ADA requires that public accommodations take necessary steps to ensure that no individual with a disability is excluded, denied service, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. Auxiliary aids may include screen reader software, magnification software, optical readers, secondary auditory programs, large print materials, accessible electronic and information technology, or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.
Although the DOJ has not issued regulations concerning website accessibility, and has removed the issue from rulemaking, many courts have applied standards established in the Web Content Accessibility Guidelines (“WCAG”) 2.0.
An update to the WCAG 2.0 was published on June 5. The new version, the WCAG 2.1, amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers. The updates largely relate to mobile devices and disabilities that affect vision and cognitive function.
For example, the WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:
o user interactions using touch,
o handling more complex gestures, and
o avoiding unintended activation of an interface.
The WCAG 2.1 also extends content requirements to graphics and introduces new requirements for text and layout customization that will benefit individuals with low vision. For users with cognitive, language, and learning disabilities, the WCAG 2.1 requires information about the specific use of input controls and additional requirements to support timeouts due to inactivity.
You can learn more about the WCAG guidelines here:
California companies beware: Court holds phone and email are not sufficient alternatives to a compliant website
The Superior Court of Los Angeles County recently granted summary judgment to a visually impaired individual, ruling that “auxiliary aids” in the form of phone calls or email replies do not satisfy the ADA’s requirement of providing equal enjoyment of a place of public accommodation.
Defendants in Thurston v. Midvale Corp. argued in part that the plaintiff could have called or emailed their restaurant to obtain information, instead of accessing the information on their website. The court held that email and telephone options do not provide equal enjoyment of the website, as the ADA requires, but instead impose a burden on the visually impaired to wait for a response via email or phone during business hours. Thus, the court held that email and telephone alternatives do not provide effective communication “in a timely manner” that protects the independence of the visually impaired.
Failure to comply with the ADA can lead to exposure to costly litigation and potential penalties. Contact your myHRcounsel team with compliance questions.
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