[blindlaw] Does Your Website Violate The Americans With Disabilities Act?, Forbes Magazine, April 2 2015

[Nightingale, Noel]

Thought folks on this list might find the below article about the application of Title III of the ADA from Forbes of interest.

Link:
http://www.forbes.com/sites/adrianagardella/2015/04/02/does-your-website-violate-the-americans-with-disabilities-act/

Text:
Does Your Website Violate The Americans With Disabilities Act?

The Americans with Disabilities Act didn't contemplate the Internet. Passed by Congress in 1990, it gives comprehensive civil rights protections to people with disabilities. Title III of the ADA, which covers access to businesses, has traditionally been applied to brick and mortar establishments to ensure that, for example, people in wheelchairs can enter. But as consumers have moved online, the law's focus has expanded.

The Department of Justice, which is responsible for implementing the ADA, is increasingly reviewing websites to determine whether they comply with the law's access requirements. At the same time, a growing number of plaintiffs are filing lawsuits alleging that various business websites are inaccessible. Internet companies, including Peapod and Netflix NFLX -1.4%, have settled cases that alleged their websites were inaccessible to people with visual and hearing disabilities. And, in June, the Department of Justice may finally issue long-delayed proposed regulations that address websites. But until clear regulations have passed, business owners will face uncertainty as to what the ADA requires.

To better understand how business websites can avoid running afoul of the law, I spoke with Lynn Calkins, who leads Holland & Knight's litigation group in Washington D.C.

A Braille reader that helps blind people access the Internet. (AP Photo/Frank Eltman)

Adriana Gardella: Why is the Department of Justice focusing on websites now?

Lynn Calkins: The DOJ first proposed a rule to address the ADA's applications to websites in 2010, after it realized so many people were shopping online. But the effective date of the rule keeps getting pushed because of the widespread implications.

Gardella:  Do we know what types of business websites will have to comply with the ADA?

Calkins: Businesses that provide products or services to the public through their websites are covered. But beyond that it's not yet clear. Court decisions have been inconsistent. For example, the ADA has been applied to websites in cases where a brick and mortar store had a website-the argument was that the ADA applied because there was a brick and mortar store. But it has also been applied in situations where there is no brick and mortar store-as cases against companies including Netflix demonstrate.

Gardella: Must a business be a certain size before its website must comply with the ADA?

Calkins: That's also not clear yet. But in its Notice of Proposed Rulemaking, the DOJ requests comments from the public on issues including whether it should take an 'incremental' approach to adopting regulations. For example, should the regulations first be applied to entities with 15 or more employees, or to those with a certain amount of revenue?

Gardella: What sorts of website issues have gotten businesses in trouble?

Calkins: Typically, problems arise when certain website features are hard to use or incompatible with an assistive device that a person with a disability requires. Assistive devices include things like screen reader software, voice interactive software, and Braille output devices for the visually impaired. Another example would be closed captioning that doesn't readily pop up. Companies also can't require a disabled person to take an extra step to get a product or service-for example, by telling them to call if they need help. And it's not enough for a company to roll out new webpages that comply with the ADA, they also have to be sure the old ones do.

Gardella: How can a business's assess whether its website is ADA-compliant?

Calkins: In its settlement agreements, the DOJ mandates compliance with the recommendations of the United States Access Board, a federal agency that promotes equality for people with disabilities. So, before a business faces a lawsuit or a DOJ compliance review, it should hire a web consultant who is familiar with those guidelines.

Gardella: What are the penalties for companies whose websites fail to comply with the ADA?

Calkins: The maximum penalty the DOJ imposes for a first violation is $75,000. For subsequent violations, it's $150,000. But the question always is, 'What constitutes a first violation?' For example, is each page a separate violation? The bigger issue is the size of any civil penalty.