Corporate Law Article

Mobile Tech and ADA

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Do I have to design my business’s website or mobile app to be accessible by individuals with disabilities?

 A: Depending on the type of business, yes.  The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in various establishments, from restaurants and movie theaters to doctors’ offices and law firms.  The ADA also requires that new or remodeled establishments since the law was passed comply with the standards to accommodate accessibility by those with disabilities.  Although perhaps not contemplated when the law was passed, courts and the Department of Justice (DOJ) have begun to grapple with the question of whether websites and mobile technology need to be reasonably accessible.  Target previously settled a class action lawsuit alleged that its website was not accessible to the blind.  Similar web technology lawsuits are bound to follow, with approximately 5,000 ADA accessibility lawsuits filed nationally each year.

The issue is that websites frequently serve the same purpose as the public accommodations that are governed by the ADA, such as selling goods and providing educational courses.  A number of disabilities can hinder access to the information and the services of these websites.  Visually impaired individuals have difficulty reading text or viewing images or videos.  Mobility impaired individuals may have difficulty navigating a website that requires a mouse.  Intellectually impaired individuals may have difficulty where timed responses are required.  Many individuals with disabilities have assistive devices, such as screen readers, but websites need to be designed in a way that these devices can do their job.

The federal courts interpreting the ADA split as to whether the ADA applies when the website has no connection with a physical store or location.  The Eleventh Circuit, which covers disputes arising in Florida, appears to take the more limited view for now that the ADA does not apply in such a circumstance (such as an exclusively online education provider or retailer with no physical location).  It is nonetheless apparent that the trend is towards requiring ADA compliance for websites that provide products or services to the public.  The Department of Justice agrees and has suggested rulemaking to that end and has already previously gone after, and settled with, at least one provider of online courses based on the allegation that the website was not fully accessible to individuals with disabilities.

Given the trend, websites owners and mobile app developers should begin to educate themselves and revise their web technologies.  Reading the Web Content Accessibility Guidelines (WGAC 2.0) and reviewing settlement agreements on the topic would be a good starting point.  This guidance will suggest many ways to comply with the ADA but also reach more customers, including adopting underlying code on the website to make the page accessible to assistive devices, removing website timeout limitations, providing text-to-speech, and reducing the “flashing” of pictures and other content (for individuals prone to seizures).

The September 22nd edition of “The Law” will discuss the use of criminal records in employment decisions.

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