By Tracy M. Evans, Esq., Associate, Saxon Gilmore & Carraway, P.A.
Published in FAHROgram March/April 2017

Last year saw a rising trend of lawsuits alleging violations of the Americans with Disabilities Act (ADA) for failure to maintain accessible websites. In this context, accessible websites are those designed to ensure equal access for everyone, including persons with disabilities. This trend is expected to continue, so it is important to determine whether your website may be a target for this type of litigation, and what can be done to make your website ADA compliant.

Title II of the ADA prohibits discrimination on the basis of disability in all services, programs and activities provided to the public by a public entity, including websites. A public entity is defined under Title II as any state or local government or any department, agency, special purpose district or other instrumentality of a state or local government. Title II’s coverage includes public housing authorities that meet the ADA’s definition of a public entity.

Title III of the ADA applies to non-governmental entities, and prohibits discrimination against the disabled in places of public accommodation. Courts have interpreted websites as being places of public accommodation, but are currently split as to whether the website must have a physical nexus, such as a physical storefront, in order to fall within Title III’s scope.

Regardless of whether your website is required to be compliant under Title II, or whether you are an entity covered under Title III, the best practice to avoid possible future liability is to take a proactive approach and ensure your website is equally accessible. Ensuring your website is equally accessible is relatively easy, and there are many products on the market that can quickly scan and identify issues with your website.

Many common problems can be easily reviewed and remedied by your webmaster. A majority of website accessibility lawsuits brought under the ADA are by the blind or visually impaired. Two assistive technologies commonly used by blind or visually impaired individuals are screen readers and refreshable Braille displays. A screen reader literally reads and speaks the text appearing on the computer screen. A refreshable Braille display is a device that translates text on the computer screen into Braille characters that are then read by touch by the user. These devices, however, cannot interpret photographs, charts, color-coded information or other graphics. In order to overcome this common problem, a simple line of HTML code can be added to each graphic to provide a description that can be read by the user’s assistive technology. These descriptions should include the same meaningful information that other users obtain by looking at the image.

Another common accessibility problem is that documents posted on a website using Portable Document Format (PDF) or other image-based formats often cannot be read by assistive technologies. As a solution to this issue, documents should always be provided in alternative text-based formats, compatible with assistive technologies.

Some visually impaired individuals have difficulty reading small text or certain colored text, and may manipulate the color and font settings on their computers to make pages readable. Sometimes websites are designed to ensure the website appears in the exact same color, size and layout on all computers, however, effectively preventing users from manipulating the website’s aesthetics through their own computer settings. To avoid this common problem, websites should be designed to be viewed with the font sizes and colors set in the users’ web browsers and operating systems.

Multimedia features on websites such as videos or automated slide shows also create accessibility issues. Individuals with hearing impairments cannot hear any audio that may accompany the multimedia, and visually impaired individuals are unable to see the video images. To overcome these issues, videos should provide text captions, and also incorporate audio descriptions of the imagery.

There are other accessibility considerations that should be taken into account when reviewing a website for accessibility. A number of resources are available to address these issues, starting with information and guidance provided by the Department of Justice at www.ada.gov. Accessibility issues should be considered each time a website is updated or new content is added. Technology is constantly evolving, so it is easy for a once accessible website to be updated to include new material that is not ADA compliant.

The ease with which website accessibility issues can be identified has contributed to the rapid increase in ADA website accessibility lawsuits. While these lawsuits have generally targeted larger companies, it is only a matter of time before focus shifts to smaller entities. Therefore, it is crucial to check your website for accessibility issues, and to bring your website into compliance as soon as possible.

 

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