with co-author Michele Landis
If you knew you could reduce your risk of exposure to litigation while at the same time opening up your business’ website to a whole new audience, would you be interested? Ensuring that your company’s website is accessible to all users, including persons with disabilities, fits that bill. Unfortunately, this is an issue that is not on the radar screens of many businesses. Since October is National Disability Employment Awareness Month, now is a perfect time for you and your company to begin to address this critical but neglected area. We will first explain the issue and why it poses a significant legal risk and then summarize how your business can address this challenge.
The Issue: What is “Accessibility?”
What are we talking about when we say a website is “accessible?” Many people with sensory and other disabilities rely on assistive software in order to access computer programs and websites. Perhaps the most commonly-used assistive software programs are “screen-readers,” which are used by many people who are blind, have low vision or have other print disabilities like dyslexia. Screen-readers convert the “printed” text on a computer screen into audible, synthesized speech. However, not all computer applications or websites are compatible with such assistive software. Depending on how the code is designed and written, the information in it may be partially or totally inaccessible to assistive software, making it difficult or impossible for people using the software to “view” a webpage. For example, the information may be partially missing, disorganized or garbled; or the page or application may be lacking the structural information, or “signposts,” so to speak, necessary for the user to navigate through the data. As explained more fully below, there are guidelines that provide specific requirements and criteria for designers and programmers to know whether the website they are building or renovating is accessible to all users, regardless of their disability.
What the Law Says
There are many federal and state laws that may affect a company’s obligation to ensure that its website is accessible to persons with disabilities. The most important of these is Title III of the Americans with Disabilities Act (ADA). Title III establishes requirements governing those businesses that the law calls “places of public accommodation,” such as hotels, restaurants, banks, movie theaters, retail stores, libraries, stadiums, doctors’ offices, museums — essentially any establishment where goods and services are offered to the public. The law requires 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.” Not surprisingly — since the ADA was enacted in 1990, before the internet was made available to the general public — the text of the ADA does not indicate whether websites where goods and services are offered to the public are included within its reach. As a result, for the first decade or so after it was enacted, judges and attorneys unquestioningly applied Title III only to physical, brick-and-mortar places of public accommodation.
But over the past 15 years, as the internet has become an ever-more-prevalent part of nearly every aspect of society, disabled individuals have begun filing Title III lawsuits about inaccessible websites, arguing that websites that are the virtual analogs to physical places of public accommodation — i.e., websites where goods and services are offered to the public — are covered by Title III. Courts have come to differing results on the question, some holding that such websites are not covered by Title III at all, some holding that they are covered and still others taking a middle path and holding that websites are covered to the extent that they have a connection, or nexus, with the company’s brick-and-mortar place of public accommodation. The Department of Justice (DOJ), the federal agency with primary responsibility for issuing regulations implementing Title III, has issued an Advanced Notice of Proposed Rulemaking promising to issue Title III website accessibility regulations and now says that these regulations are scheduled to be released “during fiscal year 2018.” But even while waiting on clear delineation of legal obligations of businesses, the DOJ, which also enforces Title III through litigation, has taken the position in numerous lawsuits that Title III applies to websites.
In short, while the issue of whether and how Title III of the ADA applies to websites is still unsettled, a business that offers goods and services to the public through its website but does not ensure that that website is accessible to all visitors, including persons with disabilities, runs a significant risk of being sued.
Are There Accepted Accessibility Standards?
In 1998, Congress amended the Rehabilitation Act to add Section 508, which requires federal agencies, “[w]hen developing, procuring, maintaining or using electronic and information technology,” to ensure that such information technology is accessible to individuals with disabilities. Section 508 explicitly authorizes the U.S. Access Board to publish specific accessibility standards. While Section 508 and its requirements are limited to U.S. federal government departments and agencies, the law has significantly influenced accessibility standards in the private sector, as well. Section 508 is due for a “refresh,” which will likely “incorporate by reference” the widely accepted Web Content Accessibility Guidelines (WCAG) version 2.0. The WCAG were developed by the World Wide Web Consortium (W3C) in cooperation with individuals and organizations around the world, with a goal of establishing a single, shared standard for web content accessibility that meets the needs of individuals, organizations and governments internationally. Indeed, WCAG 2.0 has become such a universally-respected standard for website accessibility that many people expect that DOJs forthcoming Title III website regulations will reference or incorporate WCAG 2.0.
What to Do: Practical Suggestions for Implementing Accessibility
The first thing you should do is contact an accessibility consulting firm that provides live-user testing and get a third-party “accessibility audit” of your company’s desktop and mobile websites. You need to know where your sites are at before you can start making changes.
Once you’ve received the audit, you can turn attention toward getting a plan in place for making improvements on your sites. Make sure you consider incorporating accessibility if you are already planning to redesign or update your site in the near future, since this will be much more cost-effective than rebuilding the site from the ground up.
It is also important to construct a corporate Accessibility Statement for publication and placement on your website. Target has put out an excellent example for other companies to follow.
Moreover, do not fall into the trap of thinking of accessibility as a one-time event. Since your website is constantly changing and evolving, as are technologies available to those with disabilities, accessibility requires constant monitoring and updating.
Finally, don’t rely too heavily on automatic scanning software or free tools. While these items provide a way to learn about possible issues on your site and what the WCAG are all about, they return a large number of false positives and miss many actual accessibility and usability issues. Such tools crawl your site like any other “bot” but do not experience your website through the filter of assistive technology, like a screen-reader. As stated in a federal report discussing such tools: “A website with many errors may pass an accessibility evaluation [by an automatic tool], while a website with no errors may actually not be accessible. Only a professional evaluator can make this determination.”
Even though this is an unsettled, evolving area of law, the reality is that any company that has not taken affirmative steps to ensure that its website is accessible is at significant risk of being sued. If you receive a demand letter from a law firm on this topic, don’t ignore it. Seek expert website accessibility guidance right away. Even if you have not received a demand, if you have an opportunity now to proactively complete an Accessibility Audit, try to get it done in the next few months. It is advantageous to start addressing your site’s accessibility now, as you will be able to budget and complete major updates on your own timeline rather than having to completely redo your website in response to a lawsuit or demand or when the regulations come out. If you have already undertaken these steps when you are served a demand letter or are actually sued, you will be in a much better place to react and negotiate. Our wish is that no one reading this finds themselves facing a lawsuit because of an inaccessible website. There is no need for that. Don’t wait. Get the facts and take action now.
 42 U.S.C. § 12182(a).
 Compare Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1317-19 (S.D. Fla. 2002) (an airline’s website was not a “place of public accommodation” for purposes of Title III of the ADA) with Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 952-56 (N.D. Cal. 2006) (a retailer’s e-commerce website was a “place of public accommodation” for purposes of Title III to the extent that the plaintiffs could show a nexus between access to the website and access to the retailer’s brick-and-mortar stores) with Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 568-76 (D. Vt. 2015) (a web-based virtual library which all parties agreed had no nexus with a brick-and-mortar location was a “place of public accommodation” for purposes of Title III).
 See 42 U.S.C. § 12186(b).
 See Department of Justice Fall 2015 Statement of Regulatory Priorities, available at http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html, last visited October 10, 2016.
 See, e.g., Consent Decree in Nat’l Fed’n of the Blind and the United States of America v. HRB Digital LLC and HRB Tax Group, Inc., No. 1:13-cv-10799-GAO (Mar. 25, 2014), available at https://www.ada.gov/hrb-cd.htm, last visited October 10, 2016; Settlement Agreement Between the United States of America and Ahold, U.S.A., Inc. and PeaPod, LLC, DJ 202-63-169 (Nov. 17, 2014), available at https://www.ada.gov/peapod_sa.htm, last visited October 10, 2016.
 29 U.S.C. § 794d.
 See Target Corporation’s Accessibility Statement here: http://www.target.com/c/accessibility-ways-to-shop/-/N-4ynq1.
 See the U.S. government’s statement on the scanning tools used to review the federal.gov websites here: https://staging.pulse.cio.gov/accessibility/domains/.