Webinar Q&A: What laws require a business to have an accessible website?
Updated: January 24, 2019
In the webinar, How to Mitigate the Risk of an Accessibility Lawsuit, Kristina Launey, Labor & Employment Litigation and Counseling Partner at Seyfarth Shaw LLP, talked about the current state of the law regarding accessibility.
Below is a snippet from the Q&A portion of the webinar regarding how businesses should interpret and protect themselves from website accessibility laws.
What laws require a business to have an accessible website that could result in being the basis for a website accessibility lawsuit?
KRISTINA LAUNEY: here are various statutes, laws, that could apply that may require accessible technology.
The first is Title III of the Americans with Disabilities Act. That applies to public accommodations, which we essentially refer to as any business that opens its doors to the general public, virtually or physically. There’s also Title II of the ADA, which applies to state and local governments.
The Rehabilitation Act applies to the federal government, contractors, and recipients of federal funding.
Under Section 508 of the Rehabilitation Act, not only might technology sold to federal agencies need to be compliant with 508 requirements, but also recipients of federal funding and federal contractors, in addition to the federal government, have to comply with the Section 508 requirements. And as of earlier this year and last year, the WCAG guidelines.
We’ve also seen more laws, both on the state and city levels, requiring state or city entities in their contracting to require that the vendors that contract them provide accessible technologies.
If you get sued for violation of Title III of the ADA, what might you have to do or pay to resolve the lawsuit?
KRISTINA LAUNEY: If it’s a private plaintiff that sues a business, the plaintiff could be entitled to injunctive relief, which means fixing the website, resolving the accessibility barriers on the website; attorneys’ fees to the plaintiff’s counsel for prosecuting the action; and costs, which are usually expert costs.
If the Department of Justice (DOJ) were to want to pursue an enforcement action against the business, the DOJ is also entitled to get injunctive relief – fixes to the website. And it can also recover civil penalties in the amount of $75,000 for an initial violation and $150,000 for each violation thereafter, and potentially damages for folks who actually were injured as a result of the inaccessible condition.
Under Section 504 of the Rehabilitation Act, recipients of federal financial assistance [may have to pay remedies for] injunctive relief, attorneys’ fees, costs, and damages.
State nondiscrimination laws are especially important to mention because in New York and in California mostly, we’ve seen a proliferation of lawsuits alleging violation of those laws in addition to Title III of the ADA because those state laws make damages available to plaintiffs in addition to the injunctive relief and attorneys’ fees that are available under Title III of the ADA. In California, a plaintiff can get either minimum statutory damages of $4,000 per violation or actual damages.
In the absence of a legally required standard for online accessibility under Title III of the ADA, what is a business to do?
KRISTINA LAUNEY: There is a set of guidelines that were adopted by an international consortium of web accessibility experts called the World Wide Web Consortium, the W3C.
Essentially, these guidelines provide guidance on how to design and code, construct a website so that it is accessible to individuals with different sorts of disabilities. The guidelines are put together so that they address not only one type of disability, but the various types of disabilities that people might have who would use a website, and whose disabilities could interfere with their ability to use a website.
How do you deal with third-party vendors who aren’t aware of the online accessibility guidelines? Who is responsible?
KRISTINA LAUNEY: That would be a matter of the contract between you and your vendor. But under Title III of the ADA, only the public accommodation is responsible for the accessibility of the website.
…In the Winn-Dixie lawsuit, the judge said that if you’re incorporating into your website third-party content it’s part of the way that you are providing your good or service, and you should have enough leverage through your contracting to require that third party to make that content accessible.
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