Your Ohio business website is not ADA compliant. That makes you a lawsuit target.
Are you an Ohio business with a brick and mortar location? Do you have a website with a nexus to that brick and mortar location? Congratulations, you must now comply with the Americans with Disabilities Act (“ADA”) “requirements” to make your website accessible to people with disabilities or be subject to the increasing rash of lawsuits seeking damages and attorney fees.
What does it mean that your website must be compliant? The courts don’t really know, but they are quite willing to tell you that you must comply.[1] Multiple standards have been asserted as in compliance with the ADA, including the Web Content Accessibility Guidelines (WCAG 2.0), but courts have regularly refused to explicitly adopt any specific standard of compliance as a minimum requirement for the ADA.
Instead, courts have sidestepped the question of “how does a website comply with the ADA” and instead focused on the question of whether there are articulable and comprehensible standards to which a website must conform, to which, somehow, the answer is yes.[2] As restated by the ninth circuit regarding the ADA’s application to websites, “[a] statute is vague not when it prohibits conduct according ‘to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ ”.[3] Moreover, “[b]ecause the ADA is a statute that regulates commercial conduct, it is reviewed under a less stringent standard of specificity” than, for example, criminal laws or restrictions on speech. Id.[4] Therefore, the ADA would be vague “only if it is so indefinite in its terms that it fails to articulate comprehensible standards to which a person’s conduct must conform.” Id.
None of this is particularly helpful to businesses who are trying to determine what technical requirements their websites must have to comply with the ADA. There are, however, some general rules of thumb:
- Make sure your website is compliant with WCAG 2.0 guidelines, including having text in your website capable of being read by a screen-reader.
- Include indemnification clauses in your contracts with any party creating your website, and include a requirement that the website creating/maintaining party has sufficient insurance to cover a suit.
The easiest way to do this is to have WCAG 2.0 compliance built in to the original website, rather than attempt to strap on screen reading compatibility after the fact. If that’s not doable and you already have a website up and running, work to get your website as compliant as possible by bringing on a WCAG 2.0 compliant website designer.
[1] Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 882 (N.D. Ohio 2018)
[2] Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 906 (9th Cir. 2019)
[3] Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) )
[4] citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)
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