Nat Bessey
July 22, 2019
Business Resources
How to make your website accessible to everyone
By Nathaniel Bessey and Peter Brann
Peter Brann
Maine websites are at risk. Every Maine business has a website. The good news is that Maine businesses now can sell their products and services virtually anywhere. The bad news is that they can also be sued virtually anywhere for not making their website accessible to those with disabilities under the Americans with Disabilities Act. In recent years, thousands of ADA lawsuits have been filed alleging website inaccessibility — more than 2,000 such federal suits were filed last year. Lawyers for blind or hearing-impaired web users have targeted companies of all shapes and sizes, from Domino’s to Netflix to the website of a mom-and-pop retailer, Island Comfort Footwear. Companies are sued routinely in California, Florida, New York, Pennsylvania, and elsewhere despite having no employees or property in those states. Any website is a potential target.
Does the ADA apply to websites?
Probably yes. Under Title III of the ADA, individuals with disabilities must be provided with “full and equal enjoyment” of the goods and services at any “place of public accommodation.” This obviously includes stores, schools, museums, hotels and other public spaces. Courts in the First Circuit, where Maine is located, have held that a website is also a place of public accommodation subject to the ADA. Courts elsewhere have held that the ADA only applies if the website has a sufficient connection to a bricks and mortar location, such as through a store locator. Internet-only companies nevertheless have been sued even in California, where federal courts have required a bricks-and-mortar connection.
Little guidance has been provided
The ADA doesn’t mention websites, much less explain what should be done to make them accessible. In 2010, the U.S. Department of Justice announced its plan to promulgate website accessibility regulations, but no regulations were ever proposed and, in 2017, DOJ abandoned the process altogether. Non-binding industry standards, in particular the Web Content Accessibility Guidelines (WCAG), provide useful guidance to web designers hoping to improve accessibility, but demonstrating compliance, especially with some of its subjective standards, is not straightforward. Unfortunately, even companies that attempt to comply with WCAG have been sued. Because almost all of these lawsuits settle for far less than the cost-of-defense, courts rarely provide meaningful guidance on what makes a website actually accessible.
Making websites accessible
The lack of guidance doesn’t mean that Maine business owners should just throw up their hands in despair. Because it should increase sales and reduce the risk of litigation, people can take concrete steps to make their websites more accessible. To increase accessibility for individuals with vision disabilities, companies should make their websites compatible with screen-readers — software that reads the contents of a website aloud. For the software to function properly, the website should include adequate information in the website code, including alternative text (alt-text) descriptions for each image. Closed captioning — text descriptions of video content — can make websites more accessible for individuals with hearing disabilities.
Top priorities on making websites accessible
It may appear daunting to make sure that every page of a company’s website is accessible. Although that certainly is the goal, the key places to start are the home page, the terms and conditions pages, and the checkout pages. There are also software tools that gauge the accessibility of the website, which can identify the pages that need immediate attention. Although taking all of these steps may not prevent a Maine business from being sued, it is certainly a step in the right direction from both a business and legal perspective.
Nathaniel Bessey and Peter Brann are partners at the law firm Brann & Isaacson in Lewiston. Their practice includes advising and defending internet retailers nationwide on website accessibility. To reach them: nbessey@brannlaw.com or pbrann@brannlaw.com
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