Lurking Liability for Inaccessible Websites

By: Attorney David A. Richie – Weld Riley, S.C.

The Americans with Disabilities Act (ADA) is the most far-reaching accessibility legislation in the country.  When one thinks of “accessibility” under the ADA, perhaps images of buildings with wheelchair ramps or bathrooms with “men” and “women” written in Braille come to mind.  Less likely to come to mind – but proving to be equally as important – is ensuring that an organization’s or municipality’s website is ADA accessible.

The ADA was passed in 1990, before our lives became exceedingly digitized, so it does not explicitly mention website accessibility.  However, courts across the nation have repeatedly held that the law applies to internet accessibility. 

For private employers with 15 or more employees, Title I of the ADA makes it unlawful for an employer to discriminate against a qualified applicant or employee with a disability.  For example, in September of 2017, a healthcare operator found itself in hot water for failing to accommodate an applicant’s disability during the audio portion of its online application process.  In the case of EEOC v. Health Care Servs. Corp., N.D. Tex., No. 3:17-cv-02626, 9/26/17, part of the healthcare operator’s online application process required an applicant had to sit through a 35-minute video.  However, the video did not have captions, making it impossible for the deaf applicant to complete the assessment.  The applicant contacted the company for help in completing the application, but the company stopped corresponding with the applicant.  This case was settled with the healthcare operator paying a significant sum.

It is especially important for municipalities to take notice of internet accessibility for the disabled, as a 2017 study by a nonprofit think tank concluded that 85 percent of government websites are not ADA accessible. Title II of the ADA prohibits “public entities,” such as municipalities, from discriminating against “a qualified individual with a disability” on account of that disability.  ADA regulations provide that “a public entity shall take the appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.”  Accordingly, a municipality must ensure that its website functions as effectively for people with disabilities as it does for the non-disabled.

Additionally, federal regulations mandate that a municipality must “furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.” (28 C.F.R. § 35.160(a))  As examples of “auxiliary aids,” the regulations list closed captioning and screen reader software. (28 C.F.R. § 35.104)  The list of examples is not exhaustive, however, and the type of aid needed will vary depending on the circumstances and type of disability.

A recent lawsuit filed in the District Court of Minnesota is a good example of potentially problematic municipal websites.  In this case, McCourt v. City of Chanhassen, plaintiff Noah McCourt, a disability advocate with autism, alleged that the City of Chanhassen’s website violated federal disability law.  Mr. McCourt claimed his autism causes muscle issues, which makes it hard for him to use a mouse.  According to McCourt, he sued because the City’s website had links that could not be accessed using only a keyboard.  Also, Mr. McCourt contended the website was so unintuitive that it denied him access.  As of the publishing of this article, this case remains pending.

While the prospect of making your website ADA-compliant may seem daunting, the Department of Justice, Civil Rights Division, has offered guidance, which can be found at https://www.ada.gov/pcatoolkit/chap5toolkit.htm.  One step municipalities and businesses can take is to make sure every image on their website is accompanied by a text equivalent.  This is helpful for blind and low-vision individuals whose screen-reading technology cannot interpret photos.  Another tip is to ensure that all links found on the website can be reached via keyboard so that it can be accessed by individuals who have difficulty maneuvering a mouse.

Municipalities and businesses are offering more and more of their services online.  As they do, it is important that they make sure their websites are accessible to those with disabilities. Not only will it broaden the number of applicants who can apply, doing so can help prevent getting entangled in costly ADA-related litigation.