Clicking Towards Disaster: The Cost of ADA Non-Compliant Websites

Authored by David R. Bohm with assistance from Sarah L. Ayers, contributor

Part 1 of 2-Part Series on Accessibility and Accommodation (Updated July 2023)

Business websites are an invaluable tool for businesses to reach and grow their customer base. Entire businesses now operate completely online. Interactive websites that conduct transactions with consumers must be accessible by anyone, including those with hearing or vision disabilities. Non-compliant websites violate Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination in public accommodations. A business could be found liable if its website is not accessible.

To be ADA compliant, the website should comply with the Web Content Accessibility Guidelines (WCAG). WCAG addresses accessibility issues such as contrasts, subtitles, and compatibility with screen reader equipment. This area of law is still developing. Federal courts are split as to whether Title III applies to businesses with no physical location. The Justice Department has not developed exact criteria for accessibility but has released various settlement agreements giving business owners some insights into ADA requirements.

When Rite Aid’s vaccine appointment portal was found to be inaccessible to individuals with disabilities, the company settled with the Justice Department. The issues were: (1) images, buttons, links, headings, and form fields that were either unlabeled or inaccurate, (2) pop-up windows and error messages that were not reported to screen readers, (3) tables that were missing information and proper mark-ups, (4) screen contrasts, and (5) navigation of the screen without a mouse. According to the settlement agreement, compliance is determined by “…whether individuals with disabilities have full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered.” Rite Aid agreed to continuously use an accessibility testing tool, address any barriers found within 15 days, provide annual training to employees on how to make its website accessible, and retain an outside website accessibility consultant.

Many business owners are unaware of website accessibility issues. However, intent or knowledge of inaccessibility is not required to violate the ADA. Often, a business’ first notice of accessibility issues is in the form of a federal lawsuit. These complaints are increasing. Lawsuits are often filed in states other than the company’s home state, most commonly in California and New York. The plaintiffs and lawyers in most accessibility lawsuits are frequent flyers who hunt for non-compliant sites.

How can you prevent being sued for a non-compliant website?

1. Consult with a web designer familiar with WCAG, even if your website was created within the past few years.
2. Be proactive. Use accessibility tools to find and address barriers early and respond quickly to any complaints received.
3. Create a plan for regular audits of your website and devote resources to improving it.
4. Train employees on website accessibility, or hire a trusted IT or web development company, to ensure those creating and managing your website are up to date on requirements.

Being accessible to all consumers is a good business strategy, in addition to being the law. The more accessible your website, the more potential consumers you have.

It is impossible to anticipate every potential claim that can be brought against your company, but these strategies can mitigate potential lawsuits while driving your business forward.

Click here for Part 1 – Clicking Towards Disaster: The Cost of ADA Non-Compliant Websites

Click here for Part 2 – Your Business and the ADA: Ensuring Accessibility and Inclusion

Posted by Attorney David R. Bohm with assistance from Sarah L. Ayers, law clerk. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation. Ayers, law clerk, attends Saint Louis University School of Law and is a graduate of Westminister College.

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