LEGAL & LEGISLATIVE UPDATE
Have you seen our February Legal update?
Is your Website ADA Compliant?
Most human resource professionals are familiar with Title I of the Americans with Disabilities Act (“ADA”) that prohibits private employers from discriminating against qualified individuals with disabilities in the employment context. However, Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. “Public accommodations” are businesses that are generally open to the public, such as restaurants, movie theaters, schools, daycare facilities, recreation facilities, doctors’ offices, etc.
In the last few years, plaintiffs and their attorneys have filed thousands of lawsuits against companies alleging that the companies have violated Title III of the ADA because their websites are not accessible to the visually impaired. For example, plaintiffs have alleged that a company’s website is not compatible with screen reading software programs. Plaintiffs have also alleged that they could not complete an online application because the website was not accessible to the visually impaired. Most of the cases have been filed in New York, California, Pennsylvania, and Florida.
Recently, Winn-Dixie Stores, Inc. lost a trial regarding its website and the judge ordered Winn-Dixie to make its website conform to the ADA.
Some courts have held that websites in and of themselves are public accommodations under Title III of the ADA. Other federal jurisdictions, especially in the Third Circuit that covers Pennsylvania, have held that the website must have a nexus to an actual physical location that is open to the public. For example, a restaurant website that includes the hours of operation and a menu has a nexus to an actual physical location.
The United States Department of Justice (“DOJ”) enforces Title III of the ADA, but it has refused to issue any regulations to address website accessibility. Therefore, the courts are left to determine whether a website complies with the ADA. Many courts have adopted the Web Content Accessibility Guidelines (WCAG) 2.0/2.1 AA. However, the DOJ has stated that a company’s non-compliance with WCAG 2.0 or other published standards does not necessarily indicate noncompliance with the ADA.
Without any clear guidance from the DOJ, companies that qualify as places of public accommodation are at risk. Executive management and HR professionals should evaluate their websites to make sure they are accessible to the visually impaired, especially if the company uses a web-based employment application process. If you have any questions about how the ADA applies to your website or any other ADA compliance questions, please contact Mike Crocenzi at (717) 814-5417 or [email protected] or any member of the Legal & Legislative Committee with questions.
