Matthew Borges, Patent Attorney at Metz Lewis Brodman Must O'Keefe

Matthew Borges


Posted on August 8, 2023

The internet was still in its infancy when the Americans with Disabilities Act (“ADA”) was enacted in 1990.

Understandably, the ADA does not specifically address accessibility requirements for websites, leaving a grey area in the law which has become a revenue source for some opportunistic lawyers.

Any business with a physical location open to the public is subject to the ADA both in their stores and online. However, even businesses with no physical locations can be subject to web accessibility claims. Netflix recently settled a web accessibility claim for $755,000, but most businesses would end up paying between $5,000 and $20,000 to settle these claims.

The Web Content Accessibility Guidelines (“WCAG”) are an international standard which explain how to make web content more accessible to people with disabilities. Courts often assign businesses the task of conforming to WGAC guidelines to fix their ADA non-compliant website. The Department of Justice has also released guidance that businesses can follow.

Once a court finds a business location inaccessible, businesses have a “formidable burden” of demonstrating that the violations are irrevocably irradicated and that there is no reasonable expectation that any violation will occur again. Even though it’s much easier to meet this burden with an ADA-non-compliant building than a website, courts have opted not to make a website exception.

In short, it is difficult to stop a website accessibility lawsuit once it has started. Accordingly, businesses must either be proactive about making their websites accessible or be ready to settle these ADA claims as they come.

Many online tools exist which can assess a website’s code and “pass” or “fail” certain attributes of a website. For example, an image may be missing alternate text so a screen reader cannot read it to a visually impaired user, or a website may not be navigable via keyboard so that those with physical disabilities cannot successfully visit every page. One such tool is ANDI, which is offered by the Social Security Administration.

However, courts and the Department of Justice have made it clear that one of these tools “passing” a website is not proof of accessibility; conversely, a tool “failing” a website does not definitively prove a violation of the ADA. Businesses need a comprehensive plan to meet ADA website accessibility standards.

Contact the Information and Business Technology group at Metz Lewis to learn more.

This post was written by Matthew Borges

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