By Gahram Kang, Esq.
Earlier this month, I attended a webinar on the topic of “Website Compliance and Accessibility (ADA)” to inform law firms how they can improve their website for the modern client, given by Mr. Jared Gordon, Esq. of McCormick Barstow LLP. The information I received was extremely relevant for all business owners, so we decided to share some of the highlights to keep you informed:
Since 2000, the Department of Justice (DOJ) position is that websites are places of public accommodation under the A.D.A. (Americans with Disabilities Act), which means that you are required to provide “full and equal enjoyment” to people with disabilities. The absence of a specific regulation provides flexibility in meeting the ADA’s obligations of “nondiscrimination and effective communication”. Also, the 9th Circuit has ruled that your website is an extension of your physical location, and a recent case also concluded that the ADA applies to mobile apps in addition to websites.
Because website accessibility lawsuits have dramatically increased in number (from 57 federal cases nationally in 2015 to 2250+ in 2018), and we have no statistics for California-specific
cases, we thought it worthy to bring to your attention. Some of you may have already been served with a lawsuit from an unknown plaintiff who has accused you of not having an ADA compliant website because they were unable to access your products or services as a blind consumer.
The most targeted industries include: retail, hotels, financial services and real estate. For those of you who are retailers selling goods, or even restaurants selling food, please note that your website (as well as your mobile app!) may become the target of an ADA noncompliance lawsuit.
Web Content Accessibility Guidelines (WCAG 2.1) are not necessarily required by the DOJ, but they do serve as a reliable guide for businesses. If your website complies with these guidelines (http://www.w3.org/TR/WCAG21/), then they will likely be found to be above and beyond what is required by the ADA.
Some examples of how to make your website more compliant include: a) screen reader technology (which reads the text aloud to a blind consumer), b) alternative text for all non-text elements like images, c) keyboard navigation for all features (instead of requiring use of a mouse), d) closed captioning for time-based content like videos and audio (for a deaf consumer), e) longer time intervals to read transitory text (for a dyslexic or learning disabled consumer), and f) no red-green text-background elements (for those who are color blind).
Mr. Gordon recommended focusing on core website functions first, such as contact forms & location information for your business, your home page itself, and maybe online payment systems. Check to see which pages get the most traffic on your website and then work on those pages first. Prioritize accessibility features of your website, and remember that mobile versions must work with mobile accessibility features (rotate and resize properly).
Jared Gordon is an attorney in the Business Practice Group of McCormick Barstow, LLP. Prior to private practice, he served as General Counsel to several online industry companies. He primarily advises clients on ecommerce services, online advertising, software licensing, and other vendor contracts. He also advises clients in website accessibility, intellectual property clearance and registration, online sales taxes, social media law, employment matters, acquisitions and sales, real estate, and advice on related litigation. He is the co-Chair of the CLA Business Section’s Internet and Privacy Law Committee. He can be reached at: (559) 433-1300 or Jared.firstname.lastname@example.org.