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Client Alert - Website Accessibility for the Disabled Under the Americans With Disabilities Act: Delay in DOJ Regulations, but Uptick in (Threatened) Litigation

Posted By IAMU, Wednesday, May 25, 2016
Provided by Ahlers & Cooney, P.C.
An ever-increasing amount of our daily life is being conducted online. Does this provide a disservice to those individuals who cannot, for example, hear online videos or read webpage content? It might, and the ability of disabled individuals to access web-based services and information is receiving increased attention under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504"), as well as state law equivalents.

The Law
Title III of the ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Title II of the ADA similarly prohibits discrimination based on disability by public entities of state and local government. 42 U.S.C. § 12132. The separate, but similar, Section 504 prohibits persons with disabilities from "be[ing] excluded from the participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity." 29 U.S.C. § 794(a).

The Iowa Civil Rights Act ("ICRA") also prohibits discrimination on the basis of disability in employment, education, and "public accommodation." See Iowa Code chapter 216. The Iowa Supreme Court has never decided a "website" case, but Iowa courts look to federal cases interpreting the ADA and Section 504, and their implementing regulations, in interpreting the ICRA. See, e.g., Palmer Coll. of Chiropractic v. Davenport Civil Rights Comm'n, 850 N.W.2d 326, 333 (Iowa 2014). These laws prohibit discrimination against those with disabilities based not just on "'affirmative animus,' but also any discrimination based on thoughtlessness, apathy, or stereotype." Id. (quotations omitted).

DOJ Regulations - Website Accessibility
What do these broad non-discrimination standards mean for web content? Unfortunately, there are no current clarifying regulations. In 2010, the Department of Justice (DOJ), the federal agency responsible for enforcing the ADA, submitted an Advance Notice of Proposed Rulemaking for the establishment of specific technical requirements for public entities and places of public accommodation "to make their websites accessible to persons with disabilities." On April 28, 2016, the DOJ withdrew this notice, and issued a Supplemental Notice of Proposed Rulemaking to obtain public comment on "Web accessibility, the Internet, accessibility tools, and assistive technologies" for regulations under Title II of the ADA, public entities of state and local government. It is unclear how soon regulations could be adopted following this comment period, or if the DOJ still intends to address Title III of the ADA and public accommodations with website accessibility regulations.

Increase in Litigation - and Threatened Litigation
Without regulatory guidance, there is not a clearly applicable technical or legal standard for web content accessibility. Some think website liability is thus a non-issue until regulations are adopted, but this is not a safe bet. The Department of Justice issued guidance as far back as 1996 stating: "Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means." DOJ Policy Ruling, 9/9/96. The Office of Civil Rights (OCR) has also expressed that there is "an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services" in settlement resolutions regarding Internet content.

Disabled plaintiffs are also showing a willingness to litigate in advance of regulations, which may force the courts to start developing a patchwork of common law rules on website accessibility. For instance, lawsuits by a group of hearing impaired individuals have been filed against Harvard and the Massachusetts Institute of Technology (MIT) under Title III of the ADA and Section 504. In the Harvard case, the plaintiffs argue that audiovisual content on Harvard's website should have closed captioning for the deaf or hearing-impaired plaintiffs. In the MIT case, the plaintiffs similarly seek "comprehensive and accurate captioning" or transcription of all existing and future online videos and audio files posted to "webpages, websites, and other Internet locations" that MIT "controls, maintains and/or administers." In both cases, the judge has denied the schools' motions to dismiss, finding that the mandates of the ADA and Section 504 could embrace website accessibility issues, even if there are not yet specific guidelines. In addition, the court denied requests to stay the cases until the DOJ adopted regulations. Harvard and MIT have filed motions to reconsider this preliminary ruling.

In the emergence of website accessibility as an ADA and/or Section 504 issue, at least one plaintiffs' law firm has sent demand and settlement proposal letters to entities across the country. The letter alleges website content failures for accessibility under the W3C's Version 2.0 of the WCAG Guidelines, and requests settlement in the form of injunctive relief and attorneys' fees. The WCAG 2.0 Guidelines are a helpful tool, but not currently legally binding. If you receive one of these letters, please feel free to contact us for review of the correspondence and recommendations.

Going forward
While it is an emerging area of the law, there is a willingness of at least some courts to recognize liability under the ADA and/or Section 504 of Act for website accessibility, despite the fact the DOJ has further delayed adoption of regulations. While one might speculate if other federal courts would take the same position, it is clear that the government and plaintiffs' attorneys are turning their attention to this issue. Entities subject to these laws may need to be prepared to answer the well-known fact-specific inquiries regarding "reasonable accommodations" and "fundamental alterations" of their web-based services to avoid potential litigation and liability in an uncertain area.

If you have any questions regarding website accessibility under the ADA and/or Section 504 or these laws generally, please feel free to contact Ahlers & Cooney, P.C. for more information.

Ahlers & Cooney Labor and Employment Practice Group

Tags:  Ahlers  Client Alert  Legal 

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