Keeping an Eye on Compliance with ADA Online Accommodation Requirements

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The past two years have seen a growing number of lawsuits being filed against organizations that do not operate websites that offer a means for the blind or visually impaired to navigate the site, even when using screen reading software. Fines for non-compliance can range from $15,000 to $35,000.

A year ago, 26 New York State wineries were sued as part of a class action lawsuit for failure to provide an accessible online platform for visually impaired users. Twelve additional wineries were sued this past January.

For the year of 2018, UsableNet counted 2,285 federally filed ADA web accessibility-related lawsuits—up 181% over 2017 when 814 lawsuits were filed.

And just this month, the Supreme Court declined an appeal from a restaurant chain and let stand a lower court’s ruling that stated the Americans with Disabilities Act (ADA) protects access to not only the store-front operations of such establishments, but their websites, applications and non-physical space as well.

The ADA, passed into law in 1990, guarantees equal opportunity to individuals with disabilities across different facets of public life. Title III of the ADA states that buildings open to the public, such as restaurants, must be accessible to people with disabilities.

It’s important to differentiate entities that are subject to ADA or state accommodation requirements and those that do not have to comply. The difference, as determined by historical case law, is that direct-to-consumer organizations that have a physical presence (e.g., a storefront) must also make their virtual space accessible to those covered by the ADA. On the other hand, business-to-business (B2B) or business-to-consumer (B2C) entities that only have a web presence do not need to accommodate (although web-only businesses may consider sprinting ahead of the curve by voluntarily complying, in case it becomes mandatory – see the case below).

Arguments have been raised that the nearly 30-year-old Act, which predated the existence of internet websites*, did not address online sites and apps, so it remains undefined how businesses should address the digital environment. The U.S. Department of Justice (DOJ) has yet to release long-promised clarifications on the ADA that would help courts address lawsuits that claim businesses’ websites are not handicap-accessible. The future of Title III lawsuits is unclear without well-defined guidelines being determined by the DOJ.

However, standards for ADA compliance do exist beyond the federal purview. The Web Content Accessibility Guidelines, published by the Web Accessibility Initiative, a third-party internet organization, recommends amenities—including alternative identification tags for photographs which would include a text description of the photo so the website is accessible for blind users— and subtitles on video content for deaf users.

An illustration of how organizations may address the issue and avoid such potential litigation may be found right here at HireRight. Although not a direct-to-consumer organization, HireRight has proactively taken steps to make its products and services available and user-friendly to all job candidates.

We recently announced that our Applicant Center, an online, mobile-friendly candidate-facing communications platform designed to expedite the information submission process and enable individuals to manage their background check, is now fully compliant with the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.1 (WCAG 2.1), furthering HireRight’s commitment to providing a more inclusive candidate experience.

WCAG 2.1 encompasses a wide range of recommendations developed by the World Wide Web Consortium to make web content on desktops, laptops, tablets and mobile devices more accessible to people with visual, auditory, physical, speech, cognitive, language, learning and neurological disabilities.

Applicant Center, HireRight’s candidate-facing platform designed to provide a positive candidate and customer experience with greater efficiency and consistency, now features WCAG 2.1-compliant updates that improve accessibility for individuals with certain disabilities. The software offers customizable settings that allow for the user interface to be tailored to the applicant’s individual needs. For example, the applicant is provided with the ability to use a screen reader to read text or to alter the color contrast for improved visibility.

Organizations may wish to follow HireRight’s lead. Consider the fact that unemployment is at historically low levels. On the face of it, that translates to fewer individuals being available to fill your job openings. But by ensuring their website is ADA-compliant, organizations open up the field to individuals who may possess certain limitation, but otherwise offer stellar qualifications that make them the ideal choice for the job.

But without the website job posting meeting ADA qualifications, that great candidate may never have learned of the opportunity, and been unable to apply.

While clearly under no obligation to conform to ADA standards, HireRight has taken an all-inclusive approach to accessibility simply because it’s the Right thing to do. Consider joining us.

*The first website went live on August 6, 1991. It’s still online and may be seen here.

Lewis Lustman

Lewis Lustman is a content marketer who enjoys developing materials that engage, inform, challenge, and hopefully entertain my audience. Lewis is a former journalist for Los Angeles Magazine and the Los Angeles Times, and has worked for a number of leading advertising, marketing, technology, and PR firms over the years. Interested in a topic that he hasn't yet tackled? Drop him a line in the comments section!

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