By Dana Koman
Recently, several businesses have undergone website overhauls to comply with the Americans with Disabilities Act, which prohibits discrimination and ensures equal opportunity for people with disabilities. This industry shift comes after a string of legal woes for several companies that were sued for websites deemed less or inaccessible for individuals with disabilities.
Although ADA Title III applies to places of public accommodations, such as restaurants, movie theaters, schools and doctor’s offices, courts are split on what is considered public within the online world.
A December 2016 Inside Counsel article states, “the Third, Sixth, Ninth and Eleventh Circuits have found that websites are not places of public accommodation, limiting the definition of a public accommodation to a brick and mortar store or other physical location unless there is a nexus between the website and an actual physical location. According to these decisions, web-based businesses like eBay would not be [defined as Title III], but businesses such as Wal-Mart would be.
“[However,] the First, Second, and Seventh Circuits,” the article continues, “have found websites to be places of public accommodation regardless of their nexus to a physical location.”
From 2010 to 2016, the Department of Justice [DOJ] sought feedback from the public regarding the accessibility of Web information from services of the State and local government and public accommodations.
In a statement released April 2016 that discusses its web accessibility findings, the DOJ said, “the Internet, accessibility tools, and assistive technologies have evolved. They have become more available, less expensive, and more widely used.”
Official regulation from the DOJ has yet to be announced. However, it continues to seek more feedback, conduct research, investigate and evaluate the costs of Web accessibility for businesses.
To help the national and global market with Internet accessibility, the World Wide Web Consortium [W3C] developed standards that many predict the DOJ may adopt as ADA compliance regulations in the near future.
W3C states the first step toward Website accessibility is smart page design.
“When Websites, Web technologies, or Web tools are badly designed, they can create barriers that exclude people from using the Web,” states the W3C on its Website W3.org.
W3C breaks down compliance into three levels: A, AA and AAA. The basic level A compliance includes, but is not limited to, text alternatives, video/audio captions for pre-recorded content, appropriate sensory characteristics, accessible use of color and operable content through the keyboard.
In level AA, captions are also required for all live audio/visual content as well as pre-recorded audio descriptions for all pre-recorded video content. More so, pre-recorded sign language interpretation is required for all audio content in level AAA.
In March, UC Berkeley announced it would be removing more than 20,000 videos and podcasts from its YouTube and iTunes channels after a DOJ investigation found the content did not meet ADA Title II compliance. Title II compliance is defined as any State or local government and any of its departments, agencies, or other instrumentalities, such as a public university.
Law firm Seyfarth Shaw explained on its blog that UC Berkley, in accordance with ADA Title II, has a duty to ensure public content, available free of charge, conforms with compliance.
“Title II of the ADA requires public universities and other covered entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of their services programs, or activities,” states Seyfarth Shaw.
W3C suggests businesses, small and large, take steps now to become ADA compliant – anticipating that the DOJ will pass official regulation for the United States as soon as 2018. In fact, W3C offers its vast database of ADA compliance information, processes, steps and beyond for free – hoping to set a global precedence of accessibility and compliance.
At Tepino, we are learning of, investigating and taking steps to implement ADA compliance in ours and our client’s Websites.
So, what can you do to make your site compliant?
We suggest investing time researching – or even hiring a consultant to research – the different levels of ADA compliance based on W3C’s recommendations. After reviewing the findings, we suggest you create an in-house team to determine at what cost and time it will take to make your site compliant at each level. This group should also discuss, based on your clientele, what level of compliance may be necessary.
No matter what level you choose, we believe that incorporating compliance sooner, rather than later, is key. Although compliance may mean removing or updating some of your Website content, making these changes now could help you avoid lawsuits in the future.
At Tepino, if you need assistance with your website and brand communication, we’re here to help. If you want your website to be ADA compliant, we’re happy to help guide you through the process.