Executive Summary:
The Americans With Disabilities Act requires accommodation of individuals with disabilities, which includes access to places of business. There is an ongoing legal battle over whether this accessibility mandate includes business websites and mobile apps. This article explains why there is no single legal standard (yet) and provides practical tips to avoid or defend against litigation, including a website widget that might help you.
As a business owner, you know the basics of the ADA. This 1990 law has five parts, referred to as “titles.”
Title I is the part that prohibits discrimination against job applicants and employees who are qualified and can do the essential functions of the job, with or without reasonable accommodation. It also requires reasonable accommodation of the disability so long as it does not pose an undue hardship and the person does not pose a direct threat to self or others in the desired job.
Title II requires accommodation of disabilities in the places where services are provided to the public by state and local governments. If you are a private sector business, this is not you.
Title III requires accommodation in places of public accommodation such hotels, restaurants, arenas and, yes, doctors’ offices. This means removing barriers to the goods and services offered so that the disabled can access them. Initially, it was understood this meant providing access to the physical place of business, such as close-in parking, automatic doors and Braille signage as examples. As e-commerce grew, individuals with visual and hearing disabilities demanded access to the business’s website, too, but was the law meant to go that far? And if it was, what is the standard to determine if you’ve done enough?
As is often the case, new federal laws morph over time as they are amended (by Congress), enforced (by executive agencies like the U.S. Department of Justice aka DOJ) and interpreted (by the courts). A fourth player in this scene are the plaintiffs’ lawyers who continue to file lawsuits against private businesses over their allegedly inaccessible website and mobile apps. Here is the latest from each of these:
Congress – Do not look for help here. Numerous attempts to amend the ADA by expressly requiring business websites to be accessible to the disabled and establishing a standard for compliance have failed. Congressional members resorted to writing letters to the DOJ, asking them to recognize the voluntary industry standard, WCAG 2.0AA (which the DOJ did recognize as the standard under Title II). The DOJ refused to recognize it for purposes of Title III. On February 18, 2021 the On-Line Accessibility Act (H.R. 1100) was re-introduced in Congress, to make clear that websites and mobile apps that are not accessible violate the ADA and to set WCAG 2.0AA as the standard businesses can rely on to ensure compliance. The bill shifts the duty to issue and update standards from the DOJ to the U.S. Access Board and creates a private right to sue after a 90-day notice and opportunity to cure has been exhausted. Disability rights advocates spurn the “notice and cure” provision, want richer penalties and want WCAG 2.0 AA replaced by WCAG 2.1., which means the new bill is likely to fail. As a side note, there are a handful of state legislatures which enacted website accessibility requirements but for now they are mostly limited to government and post-secondary education websites, not private business.
Federal Agencies – The DOJ is the only agency which has the right to issue a legally-binding standard for ADA compliance under Title III. It withdrew its 2010 proposed rule-making addressing web accessibility standards in late 2017, in keeping with a Trump executive order to reduce regulation and control regulatory costs. Effective January 18, 2018 WCAG2.0AA was recognized as the standard for website accessibility compliance under Title II. There is still no recognized standard for Title III and no indication that an announcement is pending. To the contrary, a reply from the DOJ Office of Legislative Affairs to a Congressman who had asked for clarification said the ADA’s accessibility requirements do apply to Title III websites and there is no need to specify a standard because “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” In other words, WCAG 2.0AA (and successor versions) is not the only route to compliance.
Courts – Court decisions are binding only within the jurisdiction of the court so the rule which applies to you depends on where you are located. Currently, there is a split among the Circuit Courts which can only be resolved if a case is appealed to and accepted by the U.S. Supreme Court. The 11th Circuit (covers GA, FL, AL) recently held that websites are not places of public accommodation and need not be accessible under the ADA. The 3rd, 5th, 6th and 9th Circuits (covering DE, NJ, PA, TX, LA, MS, MI, OH, KY, TN, MT, ID, WA, OR, CA, NV and AZ) hold that there must be a nexus between the website and physical location for the ADA to apply, so purely e-commerce businesses with no “brick and mortar” can breathe easy. The 1st, 2nd and 7th Circuits (covering ME, NH, MA, RI, VT, NY, CT, WI, IL, IN) say any website can be a place of public accommodation.
So where does that leave your practice website? Here are a few tips:
- Even though there is no accessibility legal standard, the ADA lawsuits keep coming. No one can promise that you won’t be sued or that what you’ve done will provide a rock-solid defense, but there are reasonable things you can do to mitigate your risk (and expand the reach of your business to new customers/patients). Educate yourself on the features which can enhance your website and mobile app accessibility, to reach almost anyone who wants to learn about and use your services.
- Beware of any vendor relying on scare tactics or offering to sell you a product that promises ADA compliance. It is not possible to ensure compliance when there is no standard. Each case will stand on its own merits.
- Match the location of your operations against the discussion above under Courts when assessing your risk of being sued under the ADA. Your legal counsel can examine court cases in your jurisdiction and point out website features which were found to be sufficient or fell short.
- DoctorLogic customers have the option to integrate their website with an “Accessibility Widget” offered by a trusted third party which specializes in website accessibility. The widget uses WCAG 2.1AA (an update of WCAG 2.0AA) and is continuously updated for a cost of $50/month ($600/year). If and when the DOJ pronounces an accessibility standard for Title III businesses, your update is automatic. The monthly fee will be re-evaluated and may change in the future, in response to changes in the law. You can learn more about the widget by reaching out to your Customer Success Manager.
This post does not constitute and should not be construed as legal advice. You are encouraged to consult with your own legal counsel or other professional advisor.