Is your website a potential target for an ADA Complaint?
Nearly 30 years after its passage, the federal Americans with Disabilities Act continues to grow in scope and use, even without legislative additions. For its first few decades, the ADA was used principally to raise employment discrimination claims, and to challenge the accessibility of business facilities. But advocates for the disabled continue to innovate in the types of claims for which the ADA is used, and now, with the courts embracing these new applications, more and more businesses are being threatened and sued over their web sites. These claims are forcing businesses to re-evaluate and redesign their web sites, in an effort to allow them to be used more effectively – particularly by those with vision and hearing disabilities.
One prominent criticism of the ADA from its inception was its extraordinary reliance on private law suits by aggrieved persons as its chief enforcement mechanism. Even now, as courts increasingly warm to web site-related ADA claims, we do not yet have any regulations or other governmental guidances to help businesses assess whether they have, or have not, done enough to satisfy the law. This has left businesses to rely upon guidelines published by third parties, and upon advice from experienced attorneys who have followed court trends. But reliance upon non-governmental guidelines runs the risk of being unduly influenced by advocates (for the disabled, on the one hand, or by business interests, on the other) instead of getting objective information.
Increasingly, web developers are being asked to make assessments, and to provide design alternatives. To the extent the ADA requires only “reasonable accommodations,” a concept that invites consideration of what can be achieved and at what costs, web developers may well have valuable input. But relying upon them for legal advice is not a sound strategy. At most, a business may want to get input from its web developer first, and then review the entire situation with its lawyer, before acting.
What makes the ADA particularly difficult is that its assessments of what are “reasonable accommodations” depend on a court’s judgment of what a particular business can afford. How that standard applies to a particular business can change over time, as more and more alternatives become technologically feasible, or less expensive – or as a business grows or shrinks, affecting whether it has the resources to make meeting the demands of some advocates “reasonable” in the eyes of a judge. This means that web sites must be re-evaluated periodically, in order to provide your best protection. And while the input of a web developer can be helpful, the evaluation cannot be considered complete without ultimate input from a lawyer familiar with the case law developing under the ADA.