Websites: the next task in the path to ADA compliance

Thirty years after the Americans with Disabilities Act (ADA) was passed in congress, ensuring that a building is ADA compliant has become a fact of life for business owners.

Complying with the ADA for a building’s public spaces means that businesses ensure that entrances, parking area, restrooms and any other parts of a building that could act as a barrier to entry for someone with a disability are built in a way that follows the rules set out by the 1990 act and its subsequent amendments.

While ADA compliance in relation to buildings has become the norm, attorneys are finding that businesses are putting much less attention into making their websites ADA compliant—something that Lancaster-based law firm Barley Snyder said has resulted in a significant increase in lawsuits.

Websites are just as susceptible to a lawsuit as an entrance to a business without a ramp for a wheelchair-bound customer. A site can be coded in a manner that confuses audiation software that reads the elements of a site to a blind user or has elements that make it difficult for someone to zoom in on a page.

Matthew Hennesy, a partner and commercial, intellectual property and construction litigation attorney at Barley Snyder, said that in recent months he has seen more businesses come under fire for having non-ADA compliant websites.

“Plaintiff attorneys are bringing suits to sites that don’t comply with the Web Content Accessibility Guidelines,” Hennesy said. “What we are seeing now is significantly higher than what we saw a year ago.”

Known as WCAG, the guidelines are a set of recommendations to web creators on how to improve their site’s accessibility for people with disabilities.

The ADA was last amended in 2010 and does not yet spell out what an organization needs to do in order to have a compliant website. However, the law notes that it can be applied to any entity that is a public accommodation, something generally reserved for restaurants, retail and other forms of commercial businesses.

Hennesy and another partner at the firm wrote to his clients in an alert earlier this year that some courts have ruled that websites count as public accommodations and can be sued for failing to maintain accessible websites. The country’s courts have been split on what makes a website a public accommodation and if a business without a physical storefront applies.

“There is a lack of clarity and that’s why it’s being hashed out in lawsuits which is a stressful and time consuming thing for a business,” he said.

While there is currently no law that states in what ways a business has to change their website to be ADA compliant, many federal courts, including the Western District of Pennsylvania, have ordered entities to follow the rules set in the WCAG.

Lancaster-based digital marketing and web design firm Quantum Dynamix saw the first wave of ADA compliance lawsuits for websites in 2017, said Crag Kazda, vice president of operations at Quantum.

“If you are providing services that are digitally centric on your websites and through apps and those audiences can’t access them, you’re essentially discriminating against those audiences,” Kazda said.

Precautions to take toward ADA compliance include maintaining a ratio of color contrast between a site’s text and its background to make it as readable as possible and carefully placing videos, pop ups and rapidly moving content in a way that doesn’t make the site unusable for users zooming in on the content.

While Quantum has been cognizant of WCAG and the dangers of failing to keep up compliance on its sites, Kazda said that the industry was initially slow to make broad changes in the space because it was at this time that the European Union introduced its General Data Protection Regulation (GDPR).

GDPR is a set of guidelines in EU law meant to protect the privacy of residents of the EU. For websites with exposure to EU markets, businesses had to reevaluate how they collected, sued and manipulated visitor data.

“GDPR became a part of the conversation around the globe and the EU put strong teeth on it,” Kazda said. “Because it was clearer and more forceful, people stated to take it more seriously on a national level.”

Clients at Quantum have since shown more interest in compliance, most likely due to the increasingly common lawsuits, which Hennesy said continues to grow at Barley Snyder.

Keeping up with all of the regulations in the WCAG has given firms like Quantum a heavier work load and could put them out of reach for smaller businesses. Kazda added that Quantum has seen signifantly more request for proposals related to ADA compliance, but he believes people are still asleep at the wheel.

“There are still large swaths of people that think this is a nice conversation to have but they might not see it as a necessity,” he said.

For businesses trying to navigate ADA compliance on their websites, Kazda recommends checking accessibility on a regular basis and putting an accessibility statement at the foot of the site.

WCAG checkers are also available online that will run through a webpage and test for compliance.