The Rough Waters of Website Accessibility

Monday, March 20, 2023

Companies are continuing to find it hard to navigate the legal landscape of website accessibility. Plaintiff’s lawyers argue that “inaccessible” websites or mobile apps fail to comply with the Americans With Disabilities Act or similar state laws. This despite the absence of standards for website accessibility in these laws. Similarly, while the Department of Justice does not have a regulation setting out detailed website accessibility standards, the Department’s position has been that the Americans with Disabilities Act’s general nondiscrimination and effective communication provisions apply to web accessibility.

The Department has directed that businesses look to existing technical standards for website accessibility including the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites. And despite the absence of formal website accessibility standards, the Department has continued to file enforcement actions against businesses who operate websites that it deems inaccessible.

The laws in question broadly require that places of public accommodation be accessible. But are websites or mobile apps places of public accommodation? Courts are divided. Some hold that any website can be a place of public accommodation. Others have not gone this far. This split has made it difficult for companies to know how best to proceed when developing their websites and mobile apps. The following are steps can a business take to mitigate risks in the face of these enforcement and litigation threats:

Carefully Negotiate Website Development Agreements: If you use a third parties to build or maintain your website, require that the vendor ensure the site complies with the WCAG 2.1 AA. Potential costs of ADA website litigation can be high. Thus in addition, carefully negotiate indemnification and limitation of liability provisions.
Evaluate Current Accessibility: Third party testing exists to see if a site complies with WCAG 2.1 AA. Companies can also use free or low cost tools. For example, WAVE (https://wave.webaim.org/) is a free Chrome tool often used by the plaintiff’s bar. The tool identifies website access “errors” and can be run on each website page. Setting a schedule of regularly checking site page accessibility can be an important tool in your risk mitigation arsenal.
Beware of Relying on Widgets or Overlays: Many online companies provide for-a-fee widgets or overlays. These purport to make sites fully compliant. Most of these lack human testing and are able to identify a small percentage of compliance issues. These tools may prove of limited value.
Remediate: Once the business understands the areas of non-compliance, it should evaluate the costs of remediation versus redesigning the website from scratch. Businesses will often need to balance risk against budget and practicality. At a minimum, businesses should minimize the number of accessibility errors on each website page to mitigate the risk of a website access lawsuit and to undermine any assertion should litigation ensue that their website’s noncompliance constituted intentional discrimination.

Putting It Into Practice: These four steps can help companies mitigate the risks associated with potentially costly accessibility litigation. From regular accessibility checks to strong contractual controls, companies can take steps today even absent clear legislative direction.