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Website Accessibility Litigation Is On The Rise: Is It Time for Your Website to Get With the Times?

As Published in the June, 2019 Issue of the PELRAS Newsletter


Published on: Mon 17th Jun, 2019 By: Joshua C. Hausman


It would be hopelessly anachronistic to begin this update by pointing out that websites and web-based services (such as “apps”) have become the primary mediums by which many of us seek information, order goods and services, or engage with others.  The same holds true for our interactions with local governments.  Whether a person wants to know the date and time of the next council meeting, pay their taxes, or submit a complaint about the noisy neighbors next door, municipalities are increasingly choosing to provide these services over the internet.  When municipal services are offered online, the result is often increased municipal efficiency and improved access for residents.  However, if these web-based services are inaccessible or unusable to individuals with disabilities which limit their capacity to engage with the content, these advantages are not realized, and the municipality may be in violation of its legal obligations to provide equal access to its services. 

Title I of the Americans with Disabilities Act (“ADA”), which applies to covered employers like local governments, provides that employers shall not discriminate against qualified individuals with a disability on the basis of such disability “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”  42 U.S.C. § 12112.  Covered employers are further required to provide reasonable accommodation to qualified individuals with a disability, unless doing so would present an undue hardship or direct threat to the health or safety of the workplace.  42 U.S.C. § 12113. Title II of the ADA applies to “public entities” such as state or local governments, as well as departments, agencies, special purpose districts, or other instrumentalities of state or local governments, and provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.”  42 U.S.C. § 12132. Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of “public accommodations.” 42 U.S.C. § 12182.

The ADA, which was signed into law by President George H.W. Bush in 1990, makes no specific reference to the internet, websites, or web-based services.  However, the United States Department of Justice, which is the federal agency charged with enforcement of the ADA and with the promulgation of regulations interpreting the provisions of the law, has taken the position that the ADA applies to websites under both Title II and Title III, which applies to public accommodations.  While the Department of Justice under President Trump in 2017 withdrew two (2) Advance Notices of Proposed Rulemaking which had been previously issued and which would have sought to establish standards for website accessibility under the ADA (including one (1) issued only the prior year), the Department’s reluctance to provide clear guidance on the issue has not stymied the steady rise of web accessibility lawsuits.  According to recent reports, the number of website accessibility lawsuits filed in federal court increased to at least 2,258 in 2018—a 177% increase over 2017.  In September of 2018, Assistant United States Attorney General Stephen E. Boyd sent a letter to Congress in which he stated that it was the position of the Department of Justice that the lack of a specific regulation establishing website accessibility standards does not lessen the obligation to comply with the ADA. 
 
Earlier this year, the Ninth Circuit Court of Appeals reinstated a complaint filed by a blind person against Domino’s Pizza under Title III of the ADA, who alleged that Domino’s had failed to design its web site and its mobile app so as to be compatible with the screen-reading software which he used to navigate the web.  Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).  Domino’s argued that the lack of clear Department of Justice standards deprived it of fair notice of what exactly it was required to do under the ADA to make its web-based offerings accessible.  The Ninth Circuit rejected this argument on the basis that Domino’s was required to comply with its statutory obligations under the ADA despite the lack of clear regulatory standards.

Website accessibility lawsuits are expected to increase again in total number in 2019, and the trend towards internet platforms for municipal services will only continue.  Meanwhile, many municipal employers rely on web-based services for accepting applications from prospective employees and for managing payroll and other employment information for current employees.  What is a state or local government supposed to do to ensure that its web-based services are accessible to disabled persons in the absence of regulatory action to establish standards on website accessibility?  The Department of Justice has given no indication that it intends to revisit the potential issuance of regulations in the near future.  However, guidance may be found in some of the earliest Department publications on the subject:  Accessibility of State and Local Government Websites to People with Disabilities (June 2003) (available at https://www.ada.gov/websites2.htm) and Website Accessibility Under Title II of the ADA (May 2007) (available at https://www.ada.gov/pcatoolkit/chap5toolkit.htm).

The more recent of these publications identifies common barriers faced by persons with disabilities when interacting with web-based content.  These include images without text-based equivalent content to aid the visually-impaired and those who rely on screen-reading software and documents which are not accessible in text format for the same reasons.  Also identified are restrictions or barriers to allowing persons to with visual impairments to adjust color schemes and fonts to increase readability.  Video content may lack simple accessibility accommodations, such as captions to aid the hearing impaired.  Beyond these common issues, the publication encourages web administrators to conduct a comprehensive review of their organization’s web-based content in order to identify and correct other barriers to accessibility.  The guidance document also encourages enlisting disability groups to test web content and to provide feedback and suggestions for improving accessibility.  Additionally, the guidance document instructs organizations to ensure that there are alternative ways available for individuals with disabilities to access the information and services available on the website.  However, as web-based content continues to increase in preeminence over alternative ways of doing business, the importance of ensuring that internet content is accessible will also increase. 

The earlier of these publications provides additional guidance to website administrators and IT professionals for increasing the accessibility of websites and web-based services.  The publication makes reference to both “Section 508 Standards,” which are the standards which federal agencies must use in developing their own internet services, and the “Web Content Accessibility Guidelines.”  Now known as the “Web Content Accessibility Guidelines 2.0” (“WCAG 2.0”), these are recommendations issued by a collaboration of numerous member organizations, industry leaders, and experts in the field of web programming known as the World Wide Web Consortium (“W3C”).  The purpose of WCAG 2.0 is to make internet content more accessible to a wider range of persons with disabilities, as well as to make web-based content more usable in general.  In 2017, the United States Access Board revised the Section 508 Standards so as to incorporate WCAG 2.0 standards for measuring the accessibility performance of web-based offerings.  Given the widespread adoption of WCAG 2.0, as noted by the Ninth Circuit in Domino’s Pizza, municipalities should ensure that those responsible for administrating web-based content are adhering to these standards in all matters of web development.