Does my website need to be American Disabilities Act (ADA) compliant? What does ADA compliance mean? How can you achieve it and avoid potential litigation that will bring frustration and additional costs? These are a few questions that come up when complying with the ADA. The ADA was first signed in 1990. With the rise of the global Internet, it applies to websites since websites are now a place of public accommodation under the Americans with Disabilities Act. Private businesses, as well as the government, must provide this for their website visitors.
The American Disabilities Act is a civil rights law that prohibits discrimination based on disability, but for a website to be compliant, it must be accessible to people who browse the web with assistive devices. To be compliant not only do people who are blind using text readers need access, but also it could be a color or contrast issue. If a website is not accessible to people with disabilities, it's not compliant with the law.
Because of how the legislation is written, having a website that's not accessible to everybody will be interpreted as active discrimination. If health providers are actively discriminating against people with disabilities, the health providers are at risk of being sued. It's that simple.
Note that lawsuits over American Disabilities Act compliance have risen steadily year after year and the plaintiffs’ bar typically takes one industry and writes a complaint, which is the first document in a lawsuit. Then they’ll use that one complaint for many businesses. For instance, a complaint is made against a chiropractic office. By swapping out the business name and the name of the website, it is relatively simple to file the complaint for many chiropractic offices. So we typically tend to see plaintiffs’ attorneys attacking one industry at a time because it's quick to “churn and burn” that way. And then it's a numbers game for them. They sue 200 chiropractors, and they might get settlements out of 20 of them, which is worth it.
So, lawsuits from industry to industry are rising because websites are not ADA complaint. One article on the Internet said that there is a 50% increase from one year to the next, meaning that there are 10 new lawsuits per day around the country. It is rising because more and more businesses are starting, especially since the pandemic, which means more and more businesses have a website. On a side note, most plaintiffs’ attorneys know that there's much money to be made especially from health provider’s offices via lawsuits, so be warned that this is a real concern.
With some exceptions, ADA compliance is required for most websites, definitely for business sites and government-run sites. Business websites are considered places of public accommodation under law. The good news is there are many ways to fix it and avoid or deter these lawsuits as well.
Since the American Disabilities Act was adopted in 1990 and because of the way our government works, the set of rules for website compliance are not in black and white. Since 2008, the Department of Justice considered the ADA applicable to government and business websites. But it won't weigh in on mandatory guidelines because the Department of Justice, an executive branch office, defers to the legislature to create the guidelines. Congress has not yet done that. So what can be done?
There is a world wide standard, the Web Content Accessibility Guidelines or WCAG. Right now we're at WCAG 2.0. Some of those standards are mandatory under other U.S. laws, such as the Rehabilitation Act of 1973 and the Air Carrier Access Act of 1986. Under the ADA, they are a voluntary technical standard. So there are no real technical standards under the ADA, and these WCAG Standards are the best we have. Therefore, in order to meet ADA standards, right now, it is wisest to follow the WCAG 2.0 AA standards.
Even though non-compliance with WCAG does not mean non-compliance with the ADA, that is still the best standard. The Department of Justice has come out and said that as well, because it does provide a detailed roadmap for ensuring complete accessibility on a site. And it's going to be the standard that courts use if there's a lawsuit, judgment, or settlement. If a health provider’s team doesn't have the resources to test its website and look for areas that need improving and/or doesn’t have the time to get into the “weeds” of the WCAG standards, there are other solutions out there for the health provider.
Audio Eye is one such solution. (The link to this software is at the bottom of this blog.) A line of code is placed in the header section of your website, and the software walks the user easily through it and will scan it using Audio Eye and look for any issues under WCAG 2.0 standards. Some of the issues the computer will be able to fix on the back end, but many issues will be flagged to fix manually. There's a version where businesses can pay them to do the assessment. People with disabilities will audit your site and make sure that they're flagging everything that needs to be brought to the health provider’s attention so that it can be fixed. They have a little widget accessibility bar which is very helpful.
Images that don’t have alt text are often flagged, for example. By hovering the mouse over an image on a website, there should be a little piece of text that pops up and explains the image. So if someone is blind or vision impaired going through a website and they can't see any of the photos, then that's active discrimination and they are not accessing the full part of your website. Photos with no alt text is one big issue that you want to avoid.
Also, links that don't have proper descriptions of where they go is another issue. If you hover over a hyperlink that is hidden behind text and you don't know the URL you are being directed to, the accessibility tools will help identify that as well.
It's important to have ongoing maintenance and help because health providers are often adding blogs and videos, and changing the website here and there. Audio Eye comes highly recommended. For the money, Audio Eye is a good place to start, and if needed, then reach out to other people who can help as well. Throwing a line of code in is simple with Audio Eye, and they have an accessible menu that will help with contrast and any other accessibility tools. This would be a great start for the health provider’s team in order to at least keep its website accessible to people so that the health provider is not discriminating against anybody. More practically, from a financial standpoint, it will deter plaintiffs’ attorneys from bringing suit against the health provider if they see that the health provider is taking steps towards accessibility even if not 100% perfect all the time. This takes one less thing off the health provider’s plate, eliminating the worry of noncompliance with the American Disabilities Act.
For more help with compliancy, website concerns, and other matters, reach out to us any time at Functional Lawyer. You can also access our vault of helpful videos on our Functional Lawyer Youtube Channel. Please subscribe! Lastly, you can stay up to date by following Functional Lawyer on Facebook and Instagram.
Check if Audio Eye is the right solution for your website.
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