(As featured in the Nebraska Lawyer Magazine)
By Carl Steffen1
At the ripe “old” age of 36, I have had the fortunate experience of seeing the Internet become the primary mode of information and also working with the spectrum of people who still enjoy using phone books and millennials who don’t even know what a phone book is. It’s safe to say the existence of “brick and mortar” companies is dwindling and, quite frankly, more and more people look to the Internet first for literally everything.
I’ve worked for information technology shops and software development companies and currently own several software companies. So I think it’s safe to say that I understand the technology building blocks that construct the world that we all live in. As I watch the upcoming generations collaborate and live in the office, I see them migrate away from the idea of wanting to actually go to businesses to conduct business; rather, they’d like to tap a few buttons on their phone or computer, then let the item or service come to them, wherever they might be. They don’t care whether the business has a physical location, and for all they care it doesn’t even have to exist, as long as the “thing” they requested materializes in the place they want it. If I owned a business that made these “things” materialize, I might consider dumping storefronts and offices, listing my basement as the office address and allowing all my staff to simply work from home. If I actually needed a warehouse, I might even outsource that—meaning the only physical assets my company would have to own (outside of the “thing,” if it’s not a service) is… nothing.
The Americans with Disabilities Act (ADA) was signed into law back in 1990—long before the world we live in today was even conceivable by the politicians and lawyers who enacted it. This means that there is actually no language in it that addresses websites, in general, or, for that matter, businesses that exist almost 100% virtually. Based on that simple fact, it would appear that my hypothetical business of making “things” materialize has zero legal requirements in relation to the ADA. Some have asked how this can be fair. If a business sells shirts, and it has a brick and mortar storefront, there must be handicap parking, a handicap-accessible entrance, a handicap-accessible restroom, etc.; generally, everything that a person with no disabilities is allowed to do in his or her efforts to conduct business must also be possible for those with disabilities. As an owner of a 100% virtual business, shouldn’t I want to appeal to and sell to everyone that has money and wants to buy what I’m selling? Some business owners are starting to ask if they should be required to ensure that individuals with disabilities have every ability to conduct business with them that their non-disabled counterparts have, even if only through the web.
To some, this may seem confusing. Typically when a person thinks about “ADA Compliance,” he or she typically thinks about handicap-accessible things in buildings: ramps, restrooms, elevators, etc. What would ADA compliance look like for virtual businesses? People in wheelchairs have ways of using computers and smartphones, right? While that’s generally true, there are more disabilities protected by the ADA than simply those that constrain people to wheelchairs or restrict motion. I’m going to over-generalize the multitude of disabilities down to three main categories for today. There are undoubtedly situations that fall in gray areas between these or outside of these, but this article is only intended to give a glimpse of the types of things that the ADA may be regulating in the foreseeable future.
There are dozens of visual disabilities, including multiple types of color blindness. Using your computer, try reading a bus route map in black and white, or catching up on the news blindfolded. Both tasks are nearly impossible for some people due to their visual impairments.
There are hearing disabilities—in my imaginary virtual business mentioned previously, if I have instructions for how to use the site and have opted to publish a help video that explains it in detail, watching the video without your speakers turned on would be next to useless.
While we’ve already mentioned that people with movement-related disabilities are generally able to use computers and smartphones, the tools by which they do this can be rendered useless by improperly implemented websites.
So, you’re probably asking, what does this even mean? For the sake of our friends and family members who are dealing with disabilities, there are ways in which websites can be built in order to provide the best possible experience (within reason) to everyone, regardless of abilities. The website https://www.ada.gov/pcatoolkit/chap5chklist.htm has a checklist of 26 key things to do when building a website. Note that this checklist is intended as a guideline to support their goals; they are not laws that can be enforced at this time. This checklist covers things like making sure you include “alt” text for graphics so that if someone is unable to see or comprehend the images you display, they can read (or hear, if they have what’s called a “screen reader” to help surf the web) a description of the image. I didn’t see specific reference to it in the checklist, but in the instance of a video being posted on a website, it would be important to ensure a transcript of the video is available so that those that cannot hear it can read it. There is an organization called “The World Wide Web Consortium” (W3C or www.w3.org) that is considered by many to be the authority that rules all things related to the Internet. They have published very thorough guidelines for ensuring accessibility to websites called “Web Content Accessibility Guidelines (WCAG) 2.0” that even the United States Department of Justice (DOJ) references as the standard for website accessibility (though there is no law stating this).
Depending on how a business uses a website, the impact of adhering to these guidelines ranges from almost no effect to almost impossible to maintain within any kind of budget. Simple “brochure” sites that provide a description of a physical business and contain instructions for how it can be found and/or reached may not require any alterations. A website like www.amazon.com would need multiple teams or potentially an entire department dedicated to ensuring the content within their website meets the standards.
While making a website accessible to all people should be reason enough for going through this effort, unfortunately, the bottom line is often a more persuasive reason. Let me introduce Search Engine Optimization (SEO). It’s a term thrown around by digital marketing professionals all over the place, and for those of us who do not really know what it means, it’s this magic that helps to ensure that Internet search engines like Google and Bing can both find your web site and put it as close to the top of the search results list as possible whenever someone is looking for something that is somehow related to what you do. Why would someone care about this ranking? Well, if people can’t find your website on the Internet, why even bother having a website? People tend to click on the first few results of a search and very rarely go through the effort of scrolling down to check other results. If your website is doing a better job of selling your “things” than a person in a store can, it seems like it’s pretty important that you have that website and that people be able to find it easily.
The algorithms used by the likes of Google and Bing are not published anywhere, so one might ask how a website could be built and managed in order to get a high ranking—and that would be a fair question. There are people out in the world that make a living out of researching the impact of website construction and management practices on ranking within search engines. From this research (which is published in various websites and books), we know that there are a few things that are extremely valuable that coincidentally overlap with ADA guidelines. Generally speaking, if you put a lot of text on your website that describes what your business does and has to offer, it gets a better ranking by search engines. The more often this text is updated, the higher your ranking. It also just so happens that adding things like “alt” tags to images and having transcripts for videos are things that Google and Bing pay attention to in their algorithms. In fact, many of the key items referenced on the ADA’s website, www.ada.gov, and in WCAG 2.0 double as SEO boosters, meaning that a business is generally able to accomplish a large portion (if not all) of the things it needs to do to keep it at the top of the search results page by adhering to WCAG 2.0. So the dollars spent on SEO could potentially be redirected to accessibility compliance and accomplish the same goals as SEO.
Here’s more: the DOJ is actively working to change the ADA to encompass the virtual presence of businesses. I (and many others) believe that this change will happen within our lifetime. In fact, if the DOJ’s original timeline had been adhered to, this change would have already taken effect. I recommend that all businesses that are building new websites put accessibility high on the requirements list for the development team. Building an accessible website, and workflows for updating that site with accessibility standards as a required benchmark, can be considerably cheaper than trying to retrofit a website later. As an example, let’s consider a website that sells millions of items and ships them directly to the consumer. Some items are even sold by other businesses through this site (a site that might be trying to compete with Amazon). Let’s just assert that this website is bad at making their website accessible. If the DOJ gets new laws put into effect that state that everything on that website must follow the WCAG 2.0 or fines will be imposed, that business would likely spend hundreds of thousands of dollars, if not millions, to alter the website to adhere to the standards and implement workflows that prevent people within the organization from ever posting an update that violates the WCAG 2.0. Had the site been implemented with accessibility in mind in the first place, it might have added a slight overhead to that construction, but likely only a fraction of the cost of retrofitting or rebuilding from scratch. If this company isn’t Amazon, it’s plausible that this expense would be enough to put it out of business, even if the business model could have sustained the ongoing maintenance had the site been built properly in the first place.
While I think it’s unlikely that the DOJ would write such a generic law as “all websites must adhere to WCAG 2.0,” that paints one possible outcome. I believe this is why this regulation has been delayed. The Internet is changing so rapidly that while those who are writing the laws may have had some understanding of how the Internet “worked” when they started writing them, it’s different by the time they get around to signing the paperwork and the content has become either overbearing or invalid. The language will need to be extremely clear to prevent the litigation firestorm that could erupt if it’s too open to interpretation.
There have been some cases built against businesses intended to penalize and/or force them into making their sites “more accessible.” So far our research has only uncovered cases that were settled without litigation; none that have resulted in any actual fines. It is inevitable that a case will end up in court raising the issue of remedy, not just whether there has been a violation of the ADA. It is imperative that relevant law and corresponding regulations are in place to provide guidance to the courts, attorneys and businesses utilizing websites.
Title III of the Americans with Disabilities Act (“ADA”) provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”2 As mentioned previously, the ADA was passed into law in 1990, a year before the first website was created. The ADA does not expressly mention the term “website” nor does it make a mention of online services of any type.3 Following adoption of the ADA, the Department of Justice (“DOJ”) promulgated regulations to implement the law.4 The ADA and the related regulations can be enforced through private suits, and separately by the DOJ.5 The DOJ has the right to intervene in private suits as well. The DOJ has taken the position that websites which offer goods or services to consumers are deemed to be places of public accommodation. Accordingly, websites that offer consumer goods or services must be accessible to disabled individuals, regardless of whether the website is associated with a physical location.
The DOJ initiated rulemaking in 2010 and since that time has repeatedly cancelled release date(s) for the regulations addressing websites. The DOJ has most recently announced it will not issue regulations related to website accessibility under the ADA until fiscal year 2018. Until that time, the courts, in the absence of specific regulations, will continue to decide whether the ADA applies to the accessibility of websites for disabled individuals. To date, courts are split as to whether a website falls under the scope of the ADA. Some courts have held that websites are considered places of public accommodation and accordingly fall within the scope of the ADA. The courts that hold this opinion don’t agree on whether a website must be tied to a physical location before falling under the ADA.
The Third, Sixth, Ninth and Eleventh Circuits have held that the ADA applies only to websites tied to a business with a physical location providing goods and services. Such holdings provide that “places of public accommodation” under the ADA are actual physical spaces.6 Some courts within these districts subsequently held that the ADA applies to websites only where there is a nexus between the website and the physical space. The Ninth Circuit addressed website accessibility of retailers with only an Internet presence. In two unpublished decisions, the Ninth Circuit held that because the retailer’s services are not connected to an actual physical place, the retailer is not subject to the ADA.7
The First and Seventh Circuits consider physical location irrelevant, and accordingly held that what is relevant in determining whether the ADA applies is whether the goods or services are offered to the public. These positions reason that places of public accommodation are not limited to actual physical structures.8
While it appears we have at least two more years to wait for DOJ regulations to provide clarity as to the scope of the ADA as relates to websites, litigation in this area may not wait for implementation of the regulations. Litigation risks for businesses with websites will likely depend on whether the business providing goods or services has a physical location, the jurisdiction of the business, and how accessible the website is currently.
There are also organizations out there that seek to take advantage of uninformed website owners. If you search the Internet for “Kamber Law, LLC WCAG,” you’ll find many articles about one specific group that has been sending letters to website owners all over the country. I’ve seen this letter first-hand provided to me by a client of a friend (this client happened to be a Nebraska public power district). The letter was 19 pages long. It included references to many ADA-related cases and cited a lot of language from the ADA that did not actually specifically apply to websites (we know this because it was written before websites existed). It also included an 11-page draft of a “Settlement Agreement” that defines the very cumbersome, and very general, steps for making and maintaining any website so that it meets WCAG 2.0 standards and contractually binds the recipient to a timeline. I would define this letter as a scam. To enforce WCAG 2.0 to a “T” and maintain it going forward is next to impossible for any company with any kind of interactive content on its website. There is just way too much there.
In conclusion, it’s a good idea to make sure that accessibility is part of the conversation when building a website, whether it is being built by a third-party marketing agency or your internal teams. By keeping accessibility at the forefront, features that are difficult or impossible to make accessible can be altered or removed before any effort is put into actually building them. At a minimum, websites should be implementing the WCAG 2.0 items that double as SEO boosters due to the dual benefit that will be provided. It’s out of the scope of this article (and frankly a little too long for it), but if you’re wondering exactly which items do this, a digital marketing professional should be able to help you identify exactly which items to hit.
Endnotes
1 With help from Julie M. Karavas.
2 42 U.S.C. §12181(7).
3 Same.
4 E.g., 28C.F.R Part 36 (2015).
5 42 U.S.C. §12181.
6 Parker v Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1327-28 (11th Cir. 2004).
7 Cullen v. Netflix, Inc., 600 F. App’x 508 (9th Cir. 2015); Earll v. eBay, Inc., 599 F. App’x 695 (9th Cir. 2015).
8 Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.12, 19 (1st Cir. 1994); Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001).
About the Authors:
Carl Steffen is an entrepreneur and technology expert as well as the Founder and President of Stone Fin Technology. He is a 2004 graduate of the University of Nebraska- Lincoln with a Bachelor of Science degree in Computer Engineering. Carl has built multiple technology companies from the ground up.
Julie Karavas is a partner at Karavas & Kranz, PC, with offices in Lincoln, NE, and Boulder, CO. Julie earned an LL.M. in Tax and is licensed in both Nebraska and Colorado. Julie’s experience and expertise in her transactional law practice focuses on estate, probate and trust matters, as well as business and succession planning.
