I was surprised last month to see a major national law firm suggest, in its ADA blog, that internet businesses are legally required by the ADA to create accessible websites, and need to consult a lawyer about that requirement. While it is undoubtedly true that creating an accessible web site is good public relations, it is uncertain whether it is required by the ADA. Here is a brief look at where things stand, and a recommendation about who you need to consult.
The courts will ultimately decide what the ADA requires in terms of internet access. Right now we have a very clear decision from the Ninth Circuit Court of Appeals holding that a web site is not a place of public accommodation and is therefore not subject to the ADA. Recent district court decisions in the Ninth Circuit follow this precedent, and the Ninth Circuit remains the highest federal court to address the issue.
At the other end of the case spectrum are lower court decisions holding that web sites are subject to the accessibility requirements of the ADA. These cases rely on appellate court decisions that address sales of goods or services by telephone. It remains to be seen whether any of the federal Courts of Appeals will agree with these lower court decisions.
Finally, the Department of Justice has made it clear that it believes the ADA does cover web sites and has attacked internet sellers on that belief. Those cases have all been settled, so there is no definitive court decision. In addition, regulations concerning web access under the ADA have been in progress for years, but have been repeatedly been delayed. Right now it appears there will be no notice of proposed rulemaking earlier than mid-2015.
What does this all mean for your business? If you are a large internet seller of goods and services — a Netflix or Amazon — you are certainly on the DOJ’s radar as well as that of the professional ADA plaintiff’s bar. You also probably have a large base of disabled customers and the resources to make your web site accessible. Common sense says go ahead and do it. Even though the DOJ regulations won’t be coming out soon, WCAG 2.0 (Web Content Accessibility Guidelines 2.0, see www.w3.org) is the de facto standard and will probably be a safe choice for accessibility planning.
If, on the other hand, you have a smaller business and don’t have the resources available to upgrade your web site to WCAG 2.0 you can probably choose to wait it out. There has not been a flood of lawsuits against small business web sites, the DOJ isn’t likely to notice you, and, most important, for now at least the law is on your side. The web development tools for accessible sites are improving, and businesses like WordPress that provide these tools are moving toward incorporating accessibility into their basic designs. If you wait you may find that creating an accessible web site is much easier and cheaper in the near future. You are taking a risk, of course, but on balance the risk is probably small.
Finally, although I love consulting and have no objection to lawyers making money from helping businesses with ADA compliance, if I were concerned with web accessibility I would hire a web site designer before I hired a lawyer. Once you’ve been sued the details of the cases and their arguments concerning the scope of the ADA become very interesting, and if you get sued I’ll be happy to give you a great defense. Until then your best investment is in avoiding the need for a lawyer. If you want to spend money limiting your ADA risk, spend it finding a way to implement the WCAG 2.0 standard. Unfortunately for me and my fellow lawyers, before you’ve been sued web accessibility is a software problem, not a legal problem.