ADA Title III Compliance and the Corporate Website

Executive Summary

Title III of the Americans with Disabilities Act of 1988 provides for equal access for persons with disabilities in places of public accommodation. It’s difficult to argue that the ADA has not made public spaces more accessible to more people in its nearly 30 years in existence. Its effects are present in virtually all businesses – large and small - today. In recent years, there has been movement to extend the conformance requirement to the digital presence of places of accommodation. This will apply not just to your company’s website, but all online digital media published by your company.

Over the past few years, the number of Title III complaints and lawsuits over website accessibility has been increasing. Some cases have included retailers including Target, Peapod and Winn Dixie. Fortunately for businesses, Title III limits liability to injunctive relief (the court will order a change or remedy a behavior - in this case the non-complying website) and legal fees for prevailing parties. Damages are not permitted. It also creates opportunities to dismiss claims by quickly eliminating barriers or through remediation and education.

Qoppa, LLC continuously monitors and implements technologies and processes that comply with the standards for website accessibility. Following, we will discuss the basics of ADA Title III compliance and how it applies to your company’s digital media,

Recent Trends

• ADA compliance cases/complaints are up over the past two years.
• A small but growing number of website-related complaints (250 of over 6000 in 2016)

General lawsuits over Title III compliance grew by 37% in 2016, with over 6000 cases being brought before courts; about 250 of these were specific to websites. This does not include simple demand letters that are sent without legal action. At present, these numbers are generally low; however, it is a trend that is expected to continue. And while different federal courts have taken different stances on website inclusion in Title III, ranging from outright dismissal to injunctions for compliance, it is likely that this trend, too, will continue as the U.S. Department of Justice (DOJ) takes additional time to publish guidelines for compliance.

What are ADA Title III Requirements?

• Ability to access the “goods, services…at any place of public accommodation.”
• It is prudent to consider that the digital properties of a physical place of accommodation will be required to provide access.
• DOJ stance on Title III and websites is unclear as we await a ruling to clarify the standards of compliance.
• WCAG 2.0 is a guideline, not a law, and therefore is open for interpretation.
• WCAG 2.0 level AA compliance is the generally accepted level of conformance.

The ADA stipulates that individuals with disabilities be extended the “goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These disabilities include blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity, and combinations of these.

As of summer 2017, the DOJ has not adopted specific guidelines for compliance with Title III although a ruling has been promised for 2018. DOJ has on numerous occasions pointed to the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG 2.0 level AA) in statements and briefs, which is why we expect components of it to be in an eventual final ruling.

WCAG 2.0 is a standard that outlines website accessibility for a broad range of disabilities. It spells out capabilities that conform to accessibility devices and software and is very likely to be part of the DOJ final guidelines. Its goal is to provide a single standard for web content accessibility that meets the needs of individuals, organizations and governments internationally. While WCAG 2.0 is not the law, most legal experts will recommend complying with the DOJ statements that reference WCAG 2.0 level AA.

Typical Issues

• Assistive reading devices are able to read websites that are properly configured;
• Plaintiffs normally send demand letters requesting compliance.

While ADA covers a broad range of disabilities, frequently hearing and vision impaired individuals use assistive devices to read and interpret the Internet. These devices may read aloud, generate braille text, magnify pages or allow users who cannot use a mouse to navigate with only a keyboard or touchscreen. What’s important is that your media be accessible and readable by these devices. This includes images, which require accessible descriptive text to convey the meaning of the image.

In the case of a complaint, as is similar with physical property complaints, an individual or an advocacy group usually makes a demand for compliance with Title III. It is important to acknowledge such demands and assess your state of compliance. There has been at least one case where a retailer dismissed such requests and ended up with an unfavorable judgment. Coming into compliance may not be very difficult, especially for Qoppa customers.

If you are a client of Qoppa, we have fully compliant solutions that meet WCAG 2.0 level AA guidelines. We are closely monitoring the evolution to WCAG 2.1 and the emerging WCAG 3.0 standard. These standards evolve over a period of years and we monitor and adapt as they do. And while Qoppa does not provide legal indemnity for ADA claims, we maintain high awareness and commitment to help clients develop compliant digital programs and services.

Notable Rulings and Policies

• LA Agency on Deafness v. Krikorian Premiere Theatres: originated in the physical theatre but as part of the ruling, extended to the website, namely, that information on captioning must be included on the website.  Shopping centers should assume that their websites are fair game for injunctions and settlements even if the original claim itself is not web-based.
• DOJ settlement with Peapod, Inc.:  DOJ concluded that Peapod’s website was not adequately accessible to the blind/low vision, the deaf/hard of hearing, and individuals with limited manual dexterity, e.g., inability to use a mouse.  The following specific areas were identified as deficient: (1) some images and buttons were unlabeled or had inaccurate alternative text; (2) pop-up modal windows were not reported to screen readers; (3) frame names were not named or identified; (4) tables were missing header information or proper mark-ups; and (5) boldface type was used to show which fields are required.   More generally, the settlement involved, among other things, Peapod’s being required to come into conformity (including on mobile applications) with WCAG 2.0 level AA.
• The White House Executive Order requiring all federal agencies to eliminate two regulations before a new one can be applied makes it unlikely that DOJ will promulgate definitive standards for compliance regardless of what has been stated in the past.

What kinds of features are required in the WCAG 2.0 Guidelines?

WCAG 2.0 level AA Guidelines provide technical standards on the design and features of websites to enable access to individuals with a disability.  The WCAG 2.0 level AA Guidelines ask operators of websites to provide:

• Alternative text for non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language. This is hidden from a non-disabled visitor, but is discoverable by assistive devices.
• Maximize compatibility with assistive technologies.
• Make it easier for users to see and hear content by separating foreground from background.
• Make all functionality available from a keyboard.
• Provide users with sufficient time to read and use content.
• Not design content in a way that is known to cause seizures.
• Provide ways to help users navigate, find content and determine where they are on the website.
• Alternatives for time-based media.
• Make text content readable and understandable to web navigation tools.
• Make web pages appear and operate in predictable ways.

Qoppa, LLC Commitment & Recommendation

Qoppa has been monitoring, and will continue to monitor developments in ADA website standards. Accordingly, we continue to grow and advance our systems and capabilities to accommodate the ever-evolving standards.

We believe the situation will remain in limbo under the current DOJ due to the Executive Order limiting new regulation. This will continue to confuse all stakeholders. The rise of lawsuits/complaints stems from the ambiguity of what the rules are. Until legal guidelines are published, this will, unfortunately, be determined through lawsuits with intermittent DOJ briefs.

We believe that regardless of the disposition of the current administration or the longstanding delay of concrete guidelines by the DOJ, businesses should:

1. Work with their website provider to begin steps to meet the WCAG 2.0 level AA standards.
2. Seek legal advice from an attorney conversant in ADA compliance.
3. Reply and respond to any demand letters they receive regarding compliance. Even if the decision not to comply is made, a thoughtful response to a demand letter can settle issues early.

However, it’s more than compliance.

Qoppa believes that while the risk of a compliance issue is low in terms of likelihood and cost, it remains the right thing to do for your business. You’ve worked hard to make your physical environment welcoming and inclusive of all members of society. We think it only natural that this would extend to your company’s digital footprint as well.

Qoppa is happy to work with you to develop an ADA Compliance strategy for your digital media.