ADA Compliant Websites

ADA Compliant Websites https://wahospitality.org/wp-content/uploads/2016/04/webaccessible1.jpg

No one wants to get on the wrong side of laws and regulations.

Restaurant operators rightly go to great lengths to stay compliant with federal, state and local rules to avoid government sanctions and lawsuits from customers. Increasingly, however, businesses are finding themselves in trouble for not providing accessibility to their websites for disabled users.

“A wave of demand letters is hitting the desks of businesses that operate websites,” Zoraida M. Vale, attorney with Graydon Head & Ritchey LLP, wrote in Lexology. “These letters are coming from plaintiff law firms who claim the business’ website is inaccessible under the Americans with Disability Act (ADA). Typically, the demand letter threatens litigation unless the business enters into a settlement agreement. Title III of the ADA does not allow a private party to collect monetary damages, only injunctive relief and reasonable attorney’s fees. So the proposed settlement agreement requires the business to pay the yet to be named plaintiff’s attorney’s fees and costs and use its expert to make the website ‘compliant’ with the ADA.”

Although the ADA requires places of public accommodation to be accessible to the disabled, there is nothing in the ADA that specifically addresses website access. While courts are split on this issue, in view of the lawsuits that are being initiated against businesses due to this issue, it is a good idea to act proactively and protect yourself by updating your website with accessibility in mind.

“The goal of website ADA compliance is to write your website’s code in such a manner that a person with epilepsy can use the site without risk of seizure, or a vision-impaired person using a reader can order his groceries or access his bank account,” marketing expert Will Creedle wrote on the Z:Drive blog. “It’s about fairness and bringing to the Web the same inclusiveness found in the brick-and-mortar establishments that comply with the ADA. There have been rules and best practices for writing and displaying code on a website for years now, but compliance with these rules has been only been mandated by certain businesses or industries. The result is that most websites are non-compliant and behind-the-times. The good news? Coding an ADA-compliant site is very possible with little or no impact to usability or design.”

Before you make any changes to your website, get to know WCAG 2.0 – Web Content Accessibility Guidelines. This is the industry standard for non-government websites. It’s also being used by the U.S. Department of Justice (DOJ) as a barometer in determining if a website is ADA compliant.

At its most basic, WCAG 2.0 stresses that in order to achieve accessibility, your website should be:

  • Perceivable:  Provide alternatives for text and media, create content that is presentable in different ways, and make it easier to see and hear content.
  • Operable:  Make all functionality on your pages available from keyboards, make sure have enough time to access features, avoid designs known to cause seizures, and provide tools for helping users navigate your pages.
  • Understandable:  Strive to make your Web content understandable and predictable and provide mechanisms so users can avoid and correct mistakes.
  • Robust:  Make sure your Website maximizes compatibility with current and future assistive technologies.

The DOJ is currently slated to release website accessibility guidelines for private businesses, in 2018, after many delays.

“Plaintiff law firms are taking advantage of the law’s ambiguity on website accessibility standards,” wrote Vale. “Before your business becomes a party to the shakedown, review your website for accessibility issues.”

Note: This article was adapted from Washington Restaurant Market Watch.

Appendix: How to Respond if You Receive a Demand Letter Regarding ADA Website Compliance

The National Restaurant Association received inquiries from five states regarding letters sent to restaurants by Carlson Lynch Sweet & Kipela (Carlson Lynch), a Pennsylvania law firm.  The letters are headlined “FOR SETTLEMENT PURPOSES ONLY” (emphasis in original) and say that “experts … have identified access barriers” on restaurant websites.

In its letters, the law firm lists “compliance failures” and urges recipients to contact the firm as a first step.  Specifically, the letter states that before “engaging outside experts of your own, we invite you to first contact us directly to explore a far more cost-effective and pragmatic approach to resolving these issues.” The firm also encloses a “Draft Settlement Agreement” under which a restaurant would agree to, among other things, “pay certain attorney’s fees and expenses in the amount and in accordance with the terms memorialized in a separate, confidential letter agreement.”

What should you do if you receive such a letter?

If you receive a similar letter from Carlson Lynch or another law firm, we encourage you to look at Chapter 6, “Legal Aspects of Compliance,” of the National Restaurant Association’s ADA “Toolkit for Restaurant Operators.” Contrary to Carlson Lynch’s recommendation to “first contact [Carlson Lynch] directly” before going to your own experts, we recommend that you contact or retain appropriate legal counsel and/or other consultants who are experienced in accessibility issues. In addition to that, since the letters threaten litigation, we also suggest you consider the following steps:

  • Research the plaintiff. A simple Internet search of Carlson Lynch, for example, would show that, starting last summer, the law firm has sent hundreds of similar demand letters to retailers all over the country offering to settle these alleged ACA website-accessibility claims.  As Carlson Lynch proudly highlights in its letter, it has already filed lawsuits against other retailers, including Foot Locker, Sears, Toys-R-Us, Brooks Brothers, Pep Boys, Hard Rock Cafe and others, mostly in Carlson Lynch’s home state of Pennsylvania.
  • Check whether other businesses in the area are being contacted by the same individual or entity. As with other ADA “drive-by lawsuits,” plaintiffs in these cases commonly sue other businesses in the area as well.  Given the number of inquiries we have been getting, it is highly probable that your colleagues are being contacted as well. Depending on the particular facts of each case, coordinating defense efforts or strategies may yield cost efficiencies and other advantages.
  • Assess the violations alleged. You should carefully assess with legal counsel or other consultants the merits of the violations being alleged and potential strategies for resolving them.  In this particular instance, it is questionable whether the violations Carlson Lynch highlights are actual violations at all.
  • Notify your insurance company. Insurance coverage for the potential lawsuit you are being threatened with may or may not be available depending on the particular provisions of your policy and the nature of the allegations.  Promptly notifying your insurance company of the claim will ensure that your rights under the policy are preserved.
  • Know your rights. In the event an individual or entity threatens you with, or actually files, a lawsuit, you have the right to be represented by counsel and to ask that the individual or entity communicate with you only via that counsel.  The individual or entity making the threat may also attempt to persuade you to hire them to advice on website accessibility issues.  We recommend against it.

What are the legally binding requirements for websites?

Unlike what the Carlson Lynch letter seems to imply, the U.S. Department of Justice has not issued any final, or proposed, ADA Title III rules on website accessibility.  In 2010, the DOJ announced that it was planning to issue proposed regulations on website accessibility because “a clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA does not exist.”  However, the DOJ has yet to issue proposed regulations for businesses. In fact, late last year the DOJ said it did not expect to publish such regulations until 2018.

Without a rule making from the DOJ, there is no regulatory guidance about legal requirements for the private sector on website accessibility, and no legally binding technical standard defining an accessible website.  Yet despite its delay in issuing such regulations, the DOJ continues to pursue legal actions on website accessibility—particularly in conjunction with the DOJ actions on ADA violations related to a business’s physical location.  In addition, last year, in a couple of pending private lawsuits dealing with website accessibility, the DOJ filed briefs urging the courts not to stay or dismiss the cases due to the agency’s lack of rulemaking.

What is coming next from the National Restaurant Association?

Despite no legally binding regulations, the DOJ continues to pressure businesses to comply with the “voluntary” Web Content Accessibility Guidelines (WCAG) version 2.0. The Association encourages its members to proactively explore these voluntary guidelines to address the accessibility of their websites.

The Association is working with Teresa Jakubowski, a partner in the Washington, D.C., office of Barnes & Thornburg LLP, to schedule a webinar on this subject.  Ms. Jakubowski worked on the Association’s ADA “Toolkit for Restaurant Operators” and is a member of the firm’s disability law practice.  The firm is one of the 100 largest law firms in the United States, with more than 550 legal professionals throughout 12 offices in Atlanta, Chicago, Delaware, Indiana, Los Angeles, Michigan, Minneapolis, Ohio and Washington, D.C.

Please contact Angelo Amador, Regulatory Counsel at the National Restaurant Association, at aamador@restaurant.org or 202.331.5931, with any further questions.

Further resources:

www.cairncross.com/eatdrinkshopstay/is-your-site-accessible-americans-with-disabilities-act-and-internet-access/

www.cairncross.com/eatdrinkshopstay/look-out-for-drive-by-ada-lawsuits-are-you-ready/

nwadacenter.org/factsheet/accessible-ize-your-website

adata.org/event/trends-web-accessibility

www.ada.gov/pcatoolkit/chap5toolkit.htm

http://imis.restaurant.org/store/detail.aspx?id=ADA12

 

 

Rev. 1/23/17

 


This article is an excerpt from the Handbook for Excellent Restaurant Operations (HERO), published by the Washington Hospitality Association.  Want a hard copy of the whole manual?  It’s one of the many benefits of becoming a member!  Find out more about joining the Washington Hospitality Association here.

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Categories: HERO