The Americans with Disabilities Act (ADA) requires certain businesses to make accommodations for people with disabilities. In 2010, the U.S. Department of Justice passed the Americans with Disabilities Act Standards for Accessible Design, mandating all electronic and information technology, like websites, be accessible to those who are blind, deaf, or those who must navigate by voice, screen readers, or other assistive technologies.
The failure to create an ADA-compliant website could expose a Company to discrimination lawsuits, financial liabilities, and severe damage to its reputation. “Since 2013, law firm Seyfarth Shaw has tracked the number of lawsuits filed under the ADA each year. Their data shows that more than 11,400 people filed an ADA Title III lawsuit in 2021—a 4 percent increase from 2020 and a 320 percent increase since 2013” (Gonzales, 2022).
Given the continued rise of e-commerce shopping in the Consumer Products space, this may leave businesses vulnerable to potential liability.
Who Must Follow This and Is There a Set Guideline?
Businesses that fall under Title I, those that operate 20 or more weeks per year with at least 15 full-time employees; or Title III, those that fall under the category of public accommodation are required to provide ADA-compliant websites. Examples of businesses providing public accommodations include retail stores, banks, hospitality establishments, hospitals, food and drink establishments, and sports arenas.
What does a compliant website look like, exactly? Unfortunately, there are no clear ADA regulations that outline what compliant web content is, but businesses that fall into the before-noted categories are required to develop a website that offers “reasonable accessibility” to people with disabilities. While this is a rather vague requirement, the Department of Justice recently released the following examples of potential website barriers:
- Poor color contrast. People with limited vision or color blindness cannot read the text if there is not enough contrast between the text and background (for example, light gray text on a light-colored background).
- Use of color alone to give information. People who are color-blind may not have access to information when that information is conveyed using only color cues because they cannot distinguish certain colors from others. Also, screen readers do not tell the user the color of text on a screen, so a person who is blind would not be able to know that color is meant to convey certain information (for example, using red text alone to show which fields are required on a form).
- Lack of text alternatives (“alt text”) on images. People who are blind will not be able to understand the content and purpose of images, such as pictures, illustrations, and charts, when no text alternative is provided. Text alternatives convey the purpose of an image, including pictures, illustrations, charts, etc.
- No captions on videos. People with hearing disabilities may not be able to understand information communicated in a video if the video does not have captions.
- Inaccessible online forms. People with disabilities may not be able to fill out, understand, and accurately submit forms without things like:
- Labels that screen readers can convey to their users (such as text that reads “credit card number” where that number should be entered);
- Clear instructions;
- Error indicators (such as alerts telling the user a form field is missing or incorrect); and
- Mouse-only navigation (lack of keyboard navigation). People with disabilities who cannot use a mouse or trackpad will not be able to access web content if they cannot navigate a website using a keyboard.
Failure to create an ADA-compliant website could open a business to lawsuits, financial liabilities, and damage to its brand reputation. Violations related to ADA compliance can become quite costly. A business’s first violation may result in a penalty of up to $55,000 with subsequent violations resulting in a fine of up to $110,000 for each future offense. Some notable companies sued over ADA compliance violations include Netflix, Nike, Amazon, and Five Guys Burgers and Fries.
Performing an initial due diligence check over a website could be a small investment to save potentially tens of thousands of dollars down the road.
For more information on this topic, please contact a member of Withum’s Consumer Products Services Team.