ADA Website Compliance – Is Your Business Up to Date?
June 9, 2022 | Tyler W. Eubank
By Tyler Eubank and Sara Engemann
The Americans with Disabilities act, signed into law in 1990, could not have possibly predicted the magnitude with which the internet would impact the daily lives of Americans. What once could only be accomplished in a brick-and-mortar location, like seeing a doctor or grocery shopping, can now be done completely online and from anywhere in the world. As a website could be considered a “public accommodation” under the ADA, the accessibility of websites is a new frontier in ADA litigation.
For the time being, courts disagree about the standards under the ADA, with some circuits requiring stricter standards than others. As a result, the rules may differ from state to state or jurisdiction to jurisdiction. Under certain standards, an accessible website: (1) does not include flashing graphics that could induce seizures, (2) includes text descriptions of all images so that the images can be described by a screen reader, and (3) allows the site to be navigated via keyboard alone, allowing users that cannot grip or operate a mouse to access the site, to name a few.
The ADA has already bred “drive-by ADA lawsuits” where a business receives an ADA complaint and then a nearly instant demand for payment of attorney’s fees related to the alleged violations. Now, however, with websites becoming the new frontier, these demands can come from anywhere. A person in California can serve a lawsuit on a company in Minnesota alleging inaccessibility of the website. What’s more is that the Minnesota company may be expected to fight the lawsuit in a California court.
The more that a company’s website aims to interact with a user, the more likely it is the company will be subject to personal jurisdiction in the user’s state, and be expected to fight the lawsuit in their court system. An active website is more likely to be subject than a passive one. A passive website is designed for information only, like a news site or a blog, and an active website is more interactive, like a store or an online message board. If a website is interactive, aims to sell products in multiple states, or knowingly targets an individual who is a resident of another state, it is more likely that the business would be subject to personal jurisdiction in the state of the user.
The best course for any business is to consult with an ADA-compliance officer before there is an issue. However, if your business is threatened with legal action about your website’s compliance with the ADA, the experts at Barna, Guzy & Steffen, Ltd. are prepared to help you navigate your next steps.