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Is Your Website ADA Friendly? Why Does It Matter?

By Kirstin Heffner, The McCalmon Group, Inc.

Organizations are receiving a growing number of complaints that their websites violate the Americans with Disabilities Act (ADA). Many of these complaints come in the form of demand letters from plaintiffs' lawyers.

As an example, the Independent Community Bankers of America (ICBA) is attempting to help banks address the issue. A recent ICBA survey reveals that at least 19 percent of community banks, or banks that typically derive funds from, and lend to, the communities where they operate, have received demand letters related to website accessibility. Almost a third (29 percent) say their websites are not ADA compliant, with another 56 percent admitting they are not sure. More than half (54 percent) say they have not conducted an ADA website compliance review, while another 34 percent just don't know.

Eighty-six percent of the polled banks sought legal counsel for advice. Fifty-eight percent developed strategies for making their websites compliant. A quarter of the community banks hired consultants to address ADA website compliance. "Website worries," independentbanker.org (Jan. 25, 2017).

Banks are not the only organizations getting hit with website accessibility complaints. Retail, technology, restaurants and other industries are frequently targeted for accessibility claims. Make no mistake - accessibility is a growing risk for all organizations using websites.

Accessible and assistive technologies allow people with disabilities to use websites. Technology options are continually changing and include programs, for example, that help users with attention deficit disorder stay focused with appointment reminders. They use voice recognition and screen readers to synthesize text into speech. They include an eye-tracking program that allows people without use of their hands to navigate computer screens.

Title I of the ADA requires reasonable accommodations, including accessible and assistive technology, for employees and job applicants with disabilities. Title II requires state and local governments to make websites accessible. Lastly, Title III requires public accommodations and commercial facilities in the private sector to make reasonable modifications to policies, practices and procedures for users with disabilities.

The Department of Justice (DOJ) has been highly invested in regulating website accessibility. The DOJ has intervened in many cases on behalf of plaintiffs with disabilities in the past and has always taken the stance that Title III extends to websites. However, despite an influx of litigation, the DOJ announced that it would not release Title III regulations until 2018, after Title II regulations are proposed.

Even without formal guidance, individuals with disabilities and advocacy groups can continue to sue organizations based on inaccessible websites. Now it looks like employers are going to have to get guidance elsewhere if they are going to get it any time soon. President Trump recently signed an Executive Order that severely limits new regulation of private employers. The Order does not apply to regulation of state and local governments, keeping Title II regulations on the table.

According to the survey of community banks, 54 percent, and possibly up to 88 percent, had not performed a compliance review. Do not fall in this category. Employers can minimize risk associated with website accessibility claims with a compliance review. Devise a plan and timeline for making your current website accessible, prioritizing more popular webpages. Make it easy for users with disabilities to get in touch with someone who can help with accessibility.

One place to start is the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), Level AA. This is a technical standard created by the World Wide Web Consortium to help developers and site managers make websites more accessible for everyone, but particularly those with disabilities. If the DOJ finalizes the Title II guidance, these rules will be helpful as well. In the meantime, the DOJ has published a technical assistance document titled "Accessibility of State and Local Government Websites to People with Disabilities" in conjunction with the "ADA Best Practices Tool Kit for State and Local Governments." Employers also should study past settlement agreements for guidance.

With regard to Title I, the EEOC actively protects employees with qualified disabilities. If your employees request a reasonable accommodation, be sure to immediately inform those in your workplace who manage such requests. Never ignore website accessibility issues.

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