taking the position that so long as there was an accessible route from the parking lot to the entrance , it did not matter that there were other entrances that were not accessible .) In fact , in 2010 , the DOJ apparently agreed with this principle when it officially stated that businesses with inaccessible websites may comply with the ADA ’ s requirement for access by providing an accessible alternative , such as a staffed telephone line , for individuals to access the information , goods and services of their website . In order for an entity to meet its legal obligation under the ADA , an entity ’ s alternative must provide an equal degree of access in terms of hours of operations and range of information , options and services available . ( Federal Register , September 2010 )
That Was Then , This Is Now accessible in this instance means that people with disabilities can perceive , understand , navigate and interact with the website .
More recently , however , with the mere passage of a couple of years , the DOJ has taken a different stance . In June 2015 , for example , the DOJ submitted briefs in support of litigation brought by the National Association for the Deaf , in which the DOJ asserted that websites had a pre-existing obligation under the ADA to be accessible … now . This position is consistent with enforcement actions the DOJ has brought successfully against companies such as Target , H & R Block , Wells Fargo , Peapod and others . That these companies provided alternative measures for obtaining information or otherwise interacting with their web-based services did not deter the DOJ .
Because the DOJ has a practice over the last few years of bringing enforcement actions and supporting private parties in litigation , you might think the DOJ has provided clear guidance on what it would take for a website to be lawful under the ADA . Unfortunately , that would not be accurate . Instead , not only has the DOJ not released any regulations , it recently announced in the fall of 2015 that it will likely be 2018 before it does . That is , the DOJ is going to pursue claims that websites are inaccessible but , unlike in the case of physical structures , there is no official guidance as to what standards the website will be measured . So what are you to do now , and , frankly , what does an accessible website look like ?
What Should You Be Doing Now
Although the DOJ has not published regulations on website accessibility , it does appear that a de facto standard is coming into existence based on the settlement agreements the DOJ has reached with a number of businesses . Specifically , the DOJ seems satisfied with compliance with the “ Web Content Accessibility Guidelines 2.0 ,” a technical standard created by the World Wide Web Consortium ( www . w3c . org ) to help developers and site managers make the web more accessible . How do you go about determining whether your website meets this standard ?
First , contact your web designer and webhosting service to find out their experience with these Accessibility Guidelines and whether they adhered to them in developing and updating your web page . If they do not have the relevant expertise , seek it out and have a gap analysis done by experts to determine what you need to do to make your website accessible . Have those experts prioritize the things that can be done inexpensively and quickly ( e . g ., tagging pictures with descriptive text , eliminating text from graphics , etc .). There are some tasks , e . g ., adding closed captioning to videos , that will need to be addressed , but may take longer and be more expensive . In some instances , you may want to take those and similar features offline until they are accessible .
Second , if your website goes beyond providing mere information , for example , allowing individuals to submit job applications or register for promotions , make those items a priority . The DOJ appears more interested in those websites that are not mere advertisements , but also have some degree of non-passive interaction .
Third , make sure that , as new content is added to the website , it is designed from the start to be accessible so you do not have to redo it later .
Finally , make sure your website has a way for those with disabilities to contact you to obtain information from the website and / or register accessibility concerns . Adding contact information for someone at your business who can respond to a particular user ’ s inability to access the site , or a portion of it , is a proactive step your business can take to address site accessibility issues up front in order to avoid running into legal problems later .
While taking your website down would certainly eliminate the risk of an enforcement action or a lawsuit , in today ’ s world that is simply not a realistic approach . Thus , until the DOJ publishes regulations regarding accessibility of websites , taking these steps is a good step toward limiting your exposure to a liability most people do not realize they currently have . S
DOUGLAS H . DUERR is a partner at Elarbee Thompson , a national labor and employment law firm with an industry practice area focused on franchises . Learn more at www . elarbeethompson . com .
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THESCORE | 2016 Issue 2