As websites are now critical components of virtually every business, advocates for the disabled say they, too, should be accessible to the physically or mentally impaired.

Several federal courts have recently ruled websites are “places” of business much like stores, offices and other classifications under Title III of the Americans with Disabilities Act (ADA). This means that much as a business should have adequate handrails and parking spots, it should also have a website design that can accommodate the disabled.

While there has yet to be any guidance from the Department of Justice, many courts are pointing to the Web Content Accessibility Guidelines as a blueprint for digital accessibility. Attorneys and risk managers say it’s a growing issue and that businesses should start reviewing their sites and checking their liability coverage.

ADA Moving Beyond Physical Place of Business

The ADA went into effect in 1990 and prohibits discrimination against individuals in all areas of public life, including schools, transportation, jobs and areas open to the general public.

The ADA defined disability, establishing guidelines for the reasonable accommodation process and how businesses and property owners are required to respond. In recent years, organizations and advocates for the disabled have been taking a closer look at Tittle III and its 12 categories of public accommodation. They say that with websites and virtual assets now a part of everyday life, those too must be accessible to those with disabilities.

“There’s a push to say that a place of public accommodation is more than just the brick-and-mortar [location]. It also includes websites,” said Deborah Bjes, operations and risk management leader, Swiss Re Corporate Solutions.

“Originally, people thought the ADA dealt more with literal places. The new definition courts are looking at considers websites that you could enter on your … computer.” — Michael D’Ambrise, VP, Beecher Carlson

Recent court cases have put website accessibility on the radar of risk managers as plaintiffs say some businesses are not doing enough.

In June 2017, a Florida District Court ruled in favor of the plaintiff in Juan Carlos Gil v. Winn-Dixie Stores, Inc., saying the store’s website was in violation of Title III of the ADA. It ordered the store to bring its website into compliance with the Web Content Accessibility Guidelines (WCAG).

In August 2017 a visually-impaired individual brought a suit against Blick Art Supplies in New York, arguing the website was not designed according to the Web Content Accessibility Guidelines (WCAG 2.0). The U.S. District Court for the Eastern District of New York opened the door to digital accessibility, saying “a rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.”

It’s a growing issue that businesses will have to keep an eye on, said Michael D’Ambrise, VP at Beecher Carlson. “Originally, people thought the ADA dealt more with literal places. The new definition courts are looking at considers websites that you could enter on your phone or on your computer,” he said.

ADA enforcement will likely be a pain point for companies that don’t make accommodations for visually impaired people who are unable to access essential company information online.

Deborah Bjes, operations and risk management leader, Swiss Re Corporate Solutions

There has been a surge in such litigation since the ruling, D’Ambrise said. Florida and New York have both seen the greatest number of lawsuits, with the Empire State having more than 630 website accessibility lawsuits filed in the first half of 2018. Defendants in lawsuits included hotels, restaurants, wineries and retailers.

Disabilities organizations and others say there is a need for greater digital access in a world where so many primary functions and public interactions are done online.

But many trade groups say there’s little clarity on how to define accessibility. Maris Harrilchak, senior director, government relations, the National Retail Federation, wrote on the organization’s blog that ADA standards are “less black-and-white” when it comes to online shopping.

“It is straightforward enough to measure the height of a restroom grab bar to test its ADA compliance. It is far more complex to accurately measure or predict how a specific website will interact with a specific assistive technology and its user,” Harrilchak said.

Perceivable, Operable, Understandable and Robust

While the Department of Justice has yet to introduce any standards on websites, many courts are pointing to the WCAG, D’Ambrise said. The guidelines are based on four main principles that content must be perceivable, operable, understandable and robust.

The WCAG generally state that content be presented in different ways, that there be text alternatives for non-text content and that content be easier for users to hear and see by separating foreground from background.

Websites should also have keyboard navigational functionality with enough time to read and use content and other ways for users to navigate. Designers must also ensure content is readable, useable and that webpages appear and operate in predictable ways.

Finally, content must be robust enough that it can be interpreted by a wide variety of user agents, including assistive technologies.

It can’t hurt to start looking for any “glaring issues,” D’Ambrise said. “You could go through [the guidelines] or have your tech people go through to make sure there is compliance. There are also vendors out there that will run tests for businesses to make sure they are in compliance.”

Companies operating in any of these states should also ensure they have the right insurance coverage in place that fully covers ADA discrimination claims, D’Ambrise added.

“They should look at their EPL coverage and make sure they have coverage for disability discrimination and that there is no bar on coverage that would extend to this particular issue.”

Looking Ahead

Many expect the claims to mount and the issue to take a greater focus in coming months. D’Ambrise noted in a white paper on the matter that the federal judge in the Blick case found that courts do not need agency regulations or standards by the Department of Justice to decide whether a website violates the ADA.

D’Ambrise added website accessibility claims are only a portion of the overall increase in ADA lawsuits: “2018 is projected to have the most ADA lawsuits in the past six years, with 4,965 lawsuits filed in the first six months of 2018, indicating a possible 30 percent increase over 2017 by the end of the year,” D’Ambrise wrote in his paper on the topic.

As of now, the WCAG are the best source of guidance, Bjes said. While many government websites already rely on these standards, many smaller businesses may not fully use them or even be aware of the issue.

The cost to upgrade some websites could be a burden for some small businesses, but it’s likely far less than the cost of a suit, Bjes said. “Plaintiffs’ attorneys argue that this is the gold standard and that we, the collective defendants in these lawsuits and businesses, should all comply with this particular standard.”

Bjes said many larger companies may already be complying with most of these standards now. Even if not to cater to the disabled, marketers are finding benefits in ensuring their websites reach the largest audience possible.

“Corporations and businesses are already starting to push to these standards for a lot of different reasons, not only because there are lawsuits involved, but [also] because it’s good practice and helps them reach as many people as possible,” she said. &