Businesses Should be Aware of Increased Scrutiny of Websites and Mobile Applications for ADA Compliance

Paula Lopez, May 8, 2014.

As the trend of e-commerce and the offer of goods and services through websites and mobile applications have increased, the Department of Justice (DOJ) has stepped up enforcement under the Americans with Disabilities Act (ADA) to ensure that individuals with disabilities have equal access to sites offering such goods and services online.

Title III of the ADA prohibits places of public accommodation from discriminating against disabled individuals with respect to access to goods, services, programs, and facilities offered by such public accommodations. The ADA further requires, with limited exceptions, places of public accommodations to make reasonable accommodations so that disabled individuals may have equal access to such goods and services.

The ADA identifies 12 categories of private entities that qualify as public accommodations: (1) places of lodging (hotels/inns/motels); (2) establishments serving food or drink (restaurants/bars); (3) places of exhibition or entertainment (movie theaters, concert halls, stadiums); (4) places of public gathering (convention centers/auditoriums); (5) sales or rental establishments (retail stores/grocery stores/shopping centers); (6) service establishments (banks/dry cleaners/laundromats/travel services/pharmacies/doctor’s offices/hospitals); (7) stations used for specified public transportation (terminals/depots); (8) places of public display or collection (museums/libraries); (9) places of recreation (park/zoo/amusement park); (10) places of education (grade school/high school/undergraduate/ post graduate schools); (11) social service center establishment (day care facility/senior center/homeless shelter/food bank); and (12) places of exercise or recreation (gymnasium/health spa/bowling alley/golf course).

When Title III of the ADA was enacted, places of public accommodations were brick-and-mortar structures and did not exist on the internet. Since 1990, many of the enumerated places of public accommodations have turned to offering their goods and services via the internet through websites designed for online shopping, banking, travel booking and video streaming. Individuals can even obtain educational degrees and certifications online as well as file their taxes and complete stock trades. While the ADA has not been amended to require website accessibility or implement technical standards, Title III has been held to require non-discrimination by places of public accommodations in the offering of all goods and services, including those offered on their websites.

The concept of “cyber accessibility” is not novel. The World Wide Web Consortium (W3C) publishes website content accessibility guidelines (WCAG) 2.0, which when implemented make websites accessible through the use of screen reader software. Such software works by converting website text to an audio format by reading the display screens and guiding a blind or visually impaired internet user through the site’s prompts. While WCAG 2.0 has not been formally adopted by the DOJ, it is used by the Federal government and private sector entities in making their websites accessible to individuals with disabilities. In addition, the DOJ has required compliance with WCAG 2.0 as part of a rising number of enforcement actions targeting non-ADA compliant websites.

Some notable DOJ settlements addressing the accessibility of websites have been entered into with Hilton Worldwide, Inc., Charles Schwab and most recently, H&R Block. The H&R Block lawsuit was initially filed by the National Federation of the Blind of Massachusetts and two of its members. The DOJ then filed a motion to intervene on the ground that it has a significant protectable interest in enforcing the ADA. The claims related to accessibility issues with www.hrblock.com website that prevented blind and/or visually impaired individuals from accessing all the benefits offered by the site, namely the ability to prepare and e-file their taxes. In March, H&R Block entered into a consent decree with the DOJ that also settled the private lawsuit.

The consent decree is valid for a term of 5 years and requires H&R Block to, among other things,

• comply with a timeline for bringing its website, online tax preparation products, and mobile applications into compliance with the WCAG 2.0 AA success criteria;
• designate a web accessibility coordinator; implement a web accessibility policy;
• appoint a web accessibility committee to monitor the website, online tax preparation products and mobile application’s compliance with WCAG 2.0 AA;
• train its customer service representatives to escalate calls from users with disabilities having problems using the website or online tax preparation products;
• provide annual mandatory web accessibility training to web content personnel;
• select an automated accessibility testing tool, approved by the private plaintiffs and the U.S., to evaluate conformance of web content with WCAG 2.0 AA;
• retain an independent web accessibility consultant, approved by the private parties and the U.S., to provide an annual evaluation of the website’s, online tax preparation tool’s and the mobile application’s conformance with WCAG 2.0 AA and implement any recommendations from the consultant within specified time periods; and
• comply with periodic reporting requirements.

As part of the settlement, H&R Block also agreed to pay each of the plaintiffs $22,500.00 and was assessed a civil penalty, payable to the DOJ, in the sum of $55,000.00.

The civil penalties under Title III have since been amended and the maximum civil penalty for such violations occurring on or after April 28, 2014 have increased to $75,000 from $55,000 for first offenses and to $150,000 from $110,000 for a second violation. This can have a significant effect on small businesses operating online in light of the DOJ’s recent focus on the accessibility of websites by individuals with disabilities and willingness to either initiate enforcement actions and/or intervene in private lawsuits brought under Title III. Therefore, even in the absence of an amendment to the ADA or the adoption of web accessibility guidelines by the DOJ, it is important for businesses to audit their websites and mobile applications to ensure that they are compliant with Title III if they offer goods and services.