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Websites open to the public must comply with the U.S. Disabilities Act.

Byline: Rochester Business Journal Staff

As a follow up to the Rochester Business Journal's article of March 29, 2019 concerning the rash of website accessibility cases filed in New York under the Americans with Disabilities Act (ADA), this article outlines the pertinent legal framework and provides potential mitigation and risk management strategies.

The ADA framework

Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." The definition of "discrimination" under this statute requires that public accommodations provide reasonable accommodations and auxiliary aids or services to individuals with disabilities.

Under Title III, individuals may bring a private action for injunctive relief and may also, at the court's discretion, recover attorneys' fees relating to such action. Virtually any commercial business that provides goods or services to the public will fall within the ADA's definition of "places of public accommodation" with regard to its physical place of business.

While the ADA does not specifically define a commercial website as a place of public accommodation, numerous courts have held a website to be a place of public accommodation because it provides the public with access to a company's goods or services. In some instances, courts have held that Title III's accessibility requirements do not apply to websites that have no nexus to a physical place of accommodation, such as a brick and mortar store. However, several federal district courts in the Second Circuit, including those within the State of New York, have refused to dismiss Title III cases on the basis of a lack of physical presence.

Accordingly, businesses in New York that are solely operated online may still be subject to Title III's accessibility requirements. It is important to remember, however, that not all websites will be considered places of public accommodation. For example, if a wholesaler maintains

a website, but sells products only to other businesses and not to the general public, such website should not be considered a "place of public accommodation" because its goods and services are not offered to the public at-large.

State law

In addition to Title III of the ADA, the New York Humans Rights Law (NYHRL) also provides a potential cause of action for non-compliant websites. While the NYHRL is analyzed under the same standards as Title III, unlike the ADA, which only allows for injunctive relief and attorney's fees, the NYHRL potentially allows plaintiffs to seek compensatory and punitive damages.

Accessibility standards

The release of regulations regarding specific internet accessibility obligations of private sector websites under Title III was anticipated from the Department of Justice (DOJ). However, in December 2017, the DOJ announced that its pending rulemaking notices on web accessibility were officially withdrawn. As such, it does not appear that the DOJ will be issuing any guidance on this issue in the near future.

A single uniform standard for website accessibility liability has yet to be agreed upon. Multiple courts have held that the Web Content Accessibility Guidelines (WCAG), published by the World Wide Web Consortium, are sufficient. In addition, Section 508 of the Rehabilitation Act of 1973, which applies to federal agencies and contractors, recognized WCAG 2.0 as an "industry standard." Accordingly, these standards are often used as a reasonable benchmark for compliance.

The WCAG delineates three different levels of compliance: A, AA and AAA. Several courts have agreed that the AA Level can be used by companies to bring websites into compliance. The WCAG 2.0 AA Guidelines (available at www.w3.org/TR/WCAG20) set forth broad goals and generally requires an employer's website to:

Provide text alternatives for any non-text content so that it can be changed into other needed forms , such as large print, braille, speech, symbols or simpler language;

Provide alternatives for time-based media;

Create content that can be presented in different ways (such as a simpler layout) without losing information or structure;

Make it easier for users to see and hear content including separating foreground from background;

Make all functionality available from a keyboard;

Provide ways to help users navigate, find content and determine their location;

Make text content readable and understandable;

Make web pages appear and operate in predictable ways; and

Maximize compatibility with assistive technologies.

The World Wide Web Consortium published an updated set of guidelines in June 2018. These new WCAG 2.1 guidelines are inclusive of the WCAG 2.0 criteria but also include an addition 17 criterion designed to address:

Mobile accessibility;

People with low vision; and

People with cognitive and learning disabilities.

Consequently, prudent employers will use WCAG 2.1 as a benchmark for compliance.

Employers will want to move as quickly as possible to voluntarily remediate non-compliant websites in order to avoid liability. In fact, some courts have held that if a company remedies Title III violations before, or even after, a lawsuit is filed, the plaintiff's claim has become "moot" and may be dismissed without the payment of compensatory or punitive damages. Such a dismissal can also serve to foreclose the recovery of any attorney's fees. It is important to note, however, that in order for a website accessibility complaint to be considered "moot," the website must become compliant and be fully remediated prior to the time the employer moves to dismiss the case (i.e., it cannot simply be in the "process" of remediation).

In short, the sooner a company takes measures to ensure its website is compliant, the better off it will be to avoid or defend against an imminent accessibility claim.

Jeremy Wolk is a partner in Nixon Peabody LLP's Business & Finance department. He co-authored this article with Todd Shinaman and Jeffrey League, attorneys in the firm's Labor and Employment group.

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Publication:Rochester Business Journal
Date:Apr 30, 2019
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