Written By Seth Gardenswartz
Hoping to observe COVID quarantine rules, you try to order pizza online for delivery. The buttons you click redirect across the entire website. You see a colorful list of toppings but cannot add the ones you want like garlic and anchovies (they help with the social distancing).
When a similar situation was presented to the Ninth Circuit Court of Appeals in 2019, the Court determined that websites should be treated as places of public accommodation, like restaurants or hotels, under the Americans with Disabilities Act (the “ADA”) (Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 902 (9th Cir. 2019)).
So is your business’ website a place of public accommodation? The ADA requires websites to provide “full and equal enjoyment” to the goods and services offered if your website qualifies as a place of public accommodation. The most recent application by the Eleventh Circuit held that a website is a place of public accommodation only if it is so “heavily integrated” into the services offered, that an inability to use the website would prevent a user from accessing the business’ goods and services in any form (Gill v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. 2021)). So far, Gill is the highest standard a court has provided to determine whether a website needs to comply with the ADA.
During the COVID outbreak, the heightened need to access online information and resources may increase the likelihood that your website qualifies as a place of public accommodation. As businesses moved online for COVID, more sites have probably met the Gill standard and need to comply with the ADA. If your business came to rely on remote access and services in the last year, your customers probably did too. More people are living with disabilities than you might expect; a 2015 CDC study estimates over 50 million Americans live with a disability. Regardless of the legal implications, there may be customers that your business is failing to reach by not making your website accessible.
The risks of ADA non-compliance are substantial. ADA compliance is a matter of strict liability. Remedial measures after the fact and half-baked attempts at compliance will not reduce your business’ liability for failing to satisfy the ADA. For example, Brooklyn Brewery was sued by a blind woman because she could not use a screen reader to navigate their page and get information about a potential visit. Your business could be liable to non-customers so long as they had an “intent” to access the services (White v. Square, Inc., 7 Cal.5th 1019, 250 Cal. Rptr. 3d 770, 446 P.3d 276 (Cal. 2019)). In an interconnected world, potential customers may be in other states subjecting you to that jurisdiction’s rules (Abelardo Martinez v. Epic Games, Inc. et al, Inc., No. 19STCV41717 (Cal. Super. Ct., L.A. Cty. August 12, 2020)). Your business could be subject to California’s UNRUH act even if it’s located outside of California.
So what makes a website ADA compliant? The department of Justice has not set clear rules for when a site is and isn’t compliant. However, they have indicated that meeting all ‘Web Content Access Guidelines(WCAG) 2.1’ created by the World Wide Web Consortium would likely satisfy the ADA. Even if you use an “accessible” template through a website building platform, you should not rely on that template as complying with all of WCAG or the DOJ’s standards. At the very least, you should ask two questions; how do customers encounter the website? What tools and technology are they using? Customers may be using screen readers, text-to-speech programs, or other assistive technology. When considering how customers interact with your website, certain choices not only avoid ADA violations but can improve all customers’ experiences with your website.
First, the organization of your website should follow a meaningful order; within a webpage, related materials should be easy to find including links to other pages. Navigation, including between pages, should be possible by mouse and keyboard independently.
Second, there should be alternative ways to access content on the website. The text should actually be embedded as text and not as a non-machine readable image. If text is included as an image and not formatted with an alt-text tag (like the difference between a screenshot of this page vs its Html with character codes), speech readers will not be able to recognize and reproduce the content. Pictures should include embedded “Alt-text” descriptions for screen readers and text-to-speech programs to reproduce the content. Audio-visual materials should be accompanied by captions and audio descriptions (platforms like YouTube can do this automatically). Older websites may not use these tools and should be reviewed and modernized to ensure all customers have access to the site’s content and features. If you have a legacy video that needs captions, there are sites like www.rev.com that can do that for you.
Updating your website to be ADA compatible may seem like another resource-sucking task that you, as a small business owner, are bombarded with on a daily basis. This is why you should do it happily:
First, it’s the right thing to do. Even if the ADA did not exist, if you really care about your customers and potential customers, it is completely reasonable to keep your site up to current standards for the millions of disabled Americans who might encounter your site. What message are you sending if you can’t be bothered to tag your photos and organize your content?
Second, it has a direct benefit to you. If your site is using older platforms and cryptic organizations, it creates a bad user experience, even for those without a disability. People notice and remember that kind of thing as much as a rude staff person. Tagging your photos and images will give your website a substantial free SEO boost. For example, if you have a beer named Zuzax, any photo of it on your website should have the file name and alt text tag include “Zuzax” and perhaps the style name (i.e. Kolsch) which would give Google two more possible results for a Google search.
Finally, it’s the law! The cost of updating your website is a small fraction of what it would cost you to answer a complaint, even if you were to “win.”
You may be thinking “I’m a brewer, restaurant owner, or similar small business person. How do I know if my site meets these standards?” For details on website standards and the ADA, take a look at WCAG 2.1, or Accessible.org. Better yet, get whoever manages your digital presence to look over those resources and give you an audit of your site’s accessibility. Unless you just completed an update, your website would be better with some post-COVID care and feeding. Finally, If you get a demand letter or complaint, reach out to an attorney before trying to answer it yourself; what you say could be used against you.