S I LV E R T E C H B L O G

Is Your Website ADA Compliant?

The United States Department of Justice (DOJ) recently announced that there will be a delay in issuing specific regulations dealing with making websites accessible to individuals with disabilities.

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Paul Creme VP, General

Counsel

However, this does not mean that your company is immune to a claim from an individual or group of individuals that the inaccessibility of your company’s website for people with a disability is a violation of the Americans with Disabilities Act (ADA).

There have been a few recent cases in which a court has held that despite the fact that the regulatory process has not been completed, the requirements imposed by the ADA are applicable. In one case, the court ordered the named company to provide to blind customers an independent method in which they could enter their PINS. In another, H&R Block was ordered to make both their website as well as their mobile application, compliant with the ADA. The consent decree required H&R Block to comply with the Web Content Accessibility Guidelines.

In two recent cases in Massachusetts, a Magistrate Judge refused to dismiss cases filed against MIT and Harvard. While not a final order, the schools will have an opportunity to assert various defenses later in the case, it does indicate a willingness on the part of the court to allow an argument that there is obligation to make websites accessible before the DOJ issues regulations on the subject.

Because some courts may be increasingly reluctant to dismiss website accessibility lawsuits at the beginning of the case, cases will continue to discovery. This will cause the defendant companies to incur potentially substantial costs of defense, even if the defendants ultimately prevail on the merits. These recent cases may only be the beginning of the explosion of website accessibility cases.

What Does This Mean for Businesses?

Your company should review your website to determine if it provides the same reasonable level of accessibility to content and key points of transaction as you do in your physical locations. This includes accessibility for those with visual, auditory, physical, speech or cognitive disabilities - and also includes providing functional options for those with impairments due to the normal aging process.

Website agencies and web developers refer to Web Content Accessibility Guidelines (WCAG) published by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C), the main international standards organization for the Internet.

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These guidelines are organized into three levels (A, AA, AAA) with similar types of accessibility features addressed in each but AA having more and AAA having most criteria to meet that level of accessibility standard. For example, all levels address the use of color, with the lowest level simply stating not to use color as the sole navigation element, and the highest level adding specific contrast criteria to the use of color. Many of the guidelines are also related to providing alternative content or features that can be consumed by assistive technologies - such as text readers for the visually impaired.

For most organizations, the objective is to satisfy Level AA guidelines, however, some government agencies and non-profits who serve a larger impaired audience, may work toward satisfying the majority of Level AAA guidelines (WCAG states that it is likely not possible to conform to all AAA guidelines). Businesses do not have to comply to all listed criteria to meet conformance, only those that apply to their website and audience.

For most businesses, Level AA is a reasonable objective. Level AA includes guidelines such as:

• Captions provided for audio content• Transcripts provided for video content• Content headings and labels are descriptive

of topic or purpose• Ability for the user to resize text up to 200

percent• Navigation features are consistent

Why Website Accessibility Is Difficult to Maintain?

We find that although sites may conform to Level AA guidelines when they first launch, most companies do not have governance in place to maintain it over the long term. Due to powerful Content Management Solutions (CMS) making it easy for companies to update, add and edit content on the fly without the help of developers, most websites are modified or enhanced by clients on a frequent basis by those who are not aware of accessibility requirements. This can quickly cause user frustration and can cause the site to no longer be ADA compliant.

We recommend that clients create site governance policies that list out requirements for all content types and site modifications. Additionally, the site should be audited on a regular basis either by a knowledgeable web development agency or a knowledgeable internal site owner.

And, just as new ADA laws like this one come into effect, WCAG standards change on a regular basis as well. As technology advances make conducting transactions and making key decisions online one of the primary channels of business, staying on top of WCAG guidelines and auditing your website against the success criteria not only will make the experience better for all your users, but may also save you money due to potential litigation and fines.