Web Accessibility

 

The COVID-19 pandemic has tilted the world of commerce decidedly—and perhaps irrevocably—toward a model where the fundamental point of contact between consumer and business is online. Put simply, a restaurant these days needs a website just as much as a kitchen, in order for customers to place pick-up or delivery orders consistent with physical distancing directives. An orchestra needs a way to deliver performances to audiences while concert halls are closed to crowds. An academy needs virtual classroom settings where teachers and students can communicate, assign and turn in homework, and give and take tests.

As a practical matter, these changes will translate into myriad new websites, novel digital content, and an increase in online consumer traffic. Each new website, however, is a risk, for each one represents a potential lawsuit. Specifically, every time a business creates a new digital interface with consumers, there will be an active bar of litigants examining that website for shortcomings under the World Wide Web Consortium's Web Content Accessibility Guidelines (WCAG)—and preparing a corresponding demand letter or lawsuit asserting a digital accessibility violation under the Americans with Disabilities Act (ADA) and analogous state disability discrimination laws.

Last year, even before the COVID-19 pandemic, over 10,000 such lawsuits were filed in the federal courts alone. That inventory of litigation will only increase as businesses throughout the United States race to build out new online ordering, communication tools, mobile apps, and other digital service offerings.

The theory of liability for these lawsuits is a hybrid of disability discrimination law grafted onto the increasing prevalence of web-based commerce. The ADA requires that places of public accommodation provide access to disabled persons. Places of public accommodation include privately owned facilities used in interstate commerce, from restaurants to concert halls, to accountants' offices and hospitals. The ADA was enacted when the world of commerce was largely physical in form: dining rooms with paper menus, storefronts with consumer products to take off the shelf. But as businesses went online, and consumers grew increasingly reliant on websites for information, for communication, and for core business transactions themselves, disabled persons began to contend that the ADA required adequate access not only in physical, but also in digital, contexts.

The strong form of this argument is that a website is itself a place of public accommodation. The weaker (and more common) form of this argument is that the ADA mandates adequate access to a business's website because it functions as an essential nexus to the services offered by that business's "real world" place of public accommodation, whether it be a department store or a pharmacy. In our current world of physical distancing, the increased restrictions on direct access to physical places of public accommodation will inevitably lead to a correspondingly increased emphasis on remote access to online services. With this increase in web-based commerce will come another wave of ADA website accessibility litigation.

What does access mean in the context of a consumer using a website? When a blind consumer is in front of a computer screen, a mouse—whose purpose is to position an arrow on the screen, to select links on the screen to follow, and to click on those links—is not helpful. Instead, that user needs to access the content of the webpage a different way. The digital analogue to Braille is a screen reader. Instead of maneuvering a mouse corresponding to a screen arrow, a blind website user uses the computer's keyboard to move around the website, in combination with a screen reader that will voice the content of the website. But the screen reader can only read out content that has been coded properly into the website's underlying source code.

Instead of following a layout of fields and links and colors on the screen, a blind user using a keyboard and screen reader can also access the structure of the website, but only if that information has been properly coded into the website's underlying HTML. And when a deaf consumer is presented with website content that is aural—for example, a video—she will need proper captioning to access that information.

Any company's website or mobile app can therefore serve as the "hook" for an ADA digital accessibility lawsuit. That said, it is important to keep in mind that the only substantive remedy provided by the ADA is injunctive relief. If such injunctive changes are ordered by a court, they can then form the basis for a motion for attorneys' fees to be paid by the defendant. In contrast, depending on the jurisdiction, state law disability discrimination laws may provide for additional remedies, such as damages. While they are rushing to roll out new websites and other online services, businesses should take care to design their new digital offerings to minimize claims that they provide inadequate access to disabled users.

First, businesses should work with their counsel to craft a company-wide accessibility policy committing to WCAG standards. A business without such a corporate accessibility policy will be viewed by a court as more likely to lapse into technical deficiencies, and thus more deserving of a court injunction.

Second, where new digital content has already been rolled out to the public, businesses should invest in a website accessibility audit. Companies can preserve privilege and work product protections over audit papers where the analysis is conducted under the direction of counsel by a consulting accessibility expert.

Third, businesses should create a record that their IT personnel has been trained in WCAG guidelines, and they should schedule periodic training sessions in light of the continual updates to technical accessibility specifications.

Fourth, where feasible, businesses should design any new customer-facing digital content from the ground up so that it is consistent with accessible design principles. These include, for example, ensuring that website content is keyboard accessible; has properly coded structure information that is usable by blind consumers, such as skip links and landmarks; and has usable labeling of fillable forms and other features, particularly ones that function as points of contact for commercial transactions.

While the world is unfortunately uncertain whether there will be follow-on waves of COVID-19, one thing that is certain is that there will be substantial waves of COVID-19-based litigation in the United States. One such wave will almost certainly target the multitude of new web-based service offerings necessitated by the pandemic. Given the predictable risk of website accessibility litigation in this new world of increased online commerce, businesses can and should work with their counsel to take appropriate prophylactic measures.

 

Rocky Tsai, a partner in the San Francisco office of Ropes & Gray, counsels financial, technology and life sciences clients in complex disputes and litigation risk management, with a particular emphasis in multi-forum and class action litigation. For years, he has worked closely with the National Center for Accessible Media on website accessibility audits and remediation concerning the digital assets of major consumer brands, financial institutions, and entertainment content providers.