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Is your website ADA-compliant? Avoid becoming a litigation target

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Public-facing businesses remain targets of litigation claiming that their websites are not accessible under Title III of the Americans with Disabilities Act (ADA) and similar state and local laws. The number of such lawsuits continues to trend upward, particularly in Florida, New York and California.

The legal debate over web accessibility centers around whether the ADA applies to a website and, if so, what is the extent of the ADA’s coverage and what is the standard for compliance. There is no federal legislation or regulation adopting web accessibility standards. In the meantime, the Web Content Accessibility Guidelines (WCAG) 2.0 AA, published in 2008 by a private consortium known as the W3C, has emerged as the de facto standard for making websites and mobile applications accessible to persons with disabilities.

Some courts have enjoined businesses to satisfy WCAG 2.0 AA. Under the prior administration, the U.S. Department of Justice, which is charged with enforcing Title III of the ADA, entered into settlement agreements requiring the respondent businesses to enhance their websites to comply with WCAG 2.0 AA. Plaintiff’s firms also have sent numerous pre-suit demand letters to businesses whose websites allegedly do not meet the guidance.

As the debate over web accessibility has lingered, the W3C has worked to expand its guidance. On June 5, the W3C published its anticipated WCAG 2.1 as a W3C Recommendation. According to the W3C, WCAG 2.1 builds on WCAG 2.0 and includes 2.0’s success criteria, such that web pages that conform to 2.1 also conform to 2.0.

WCAG 2.1, however, adds 17 new success criteria. The additions are organized under 2.0’s principles of accessibility (perceivable, operable, understandable, and robust) and follow its conformance levels (A-must satisfy, AA-should satisfy, and AAA-may satisfy). They also are designed to be testable with automated software and manual testing.

WCAG 2.1 is intended to address three major groups: users with cognitive or learning disabilities (e.g., language and memory related disabilities), users with low vision (e.g., colorblindness), and users with disabilities on mobile devices (to keep pace with technological advancements since 2008).

As examples, 1.4.12 ensures that persons with low vision who increase spacing between lines, words, and letters, can effectively read text; 2.3.3 allows users to prevent animated content from being displayed on web pages because it can cause some users to experience distraction, nausea, etc.; and 2.5.6 ensures that people can use and switch between different modes of input when interacting with web content, e.g., use an external keyboard as an alternative to a touchscreen on a mobile phone or tablet.

While 2.1 is not meant to overhaul 2.0, implementing the additional criteria will require some work.

Many businesses already have modified their websites to meet WCAG 2.0. The question becomes whether those businesses will now be forced to further enhance their websites to meet 2.1 or be “grandfathered” in. Only time will tell. There is no current target date for the DOJ to promulgate website accessibility regulations. Thus, it seems that it will be up to the judiciary to determine on a case-by-case basis whether businesses must meet 2.1. Such a mandate seems unlikely in the short-term. A long game view, however, requires attention to this issue given the growing market for online goods and services and push toward digital accessibility by various stakeholders.

Here are some tips for businesses:

▪ Audit your website to ascertain what potential barriers to access may be present.

▪ Learn about WCAG 2.1’s success criteria and develop a plan to integrate 2.1 into your platform.

▪ Consult with counsel and technologists on best practices for web and mobile app accessibility.

▪ Develop a web and mobile app accessibility plan.

▪ Dust off your vendor contracts and consider adding or supplementing provisions on indemnification and representations and warranties.

Website accessibility litigation does not appear to be slowing down any time soon. As such, businesses should remain vigilant and take proactive steps to avoid being targeted.

Stephanie N. Moot and Carol C. Lumpkin are partners at K&L Gates in Miami.

▪ This opinion piece reflects the writer’s view and not necessarily those of the Miami Herald and Business Monday.

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