Did You Receive a Letter Complaining About Your Website?

If your business has a website, you may have received a letter from a law firm informing you that your website is not compliant with the Americans with Disabilities Act of 1990 (the "ADA") and offering to negotiate a settlement with you. The letter is an attempt to take advantage of a legal "gray area" that exists because there is practically no legal authority stating what a website needs, in order to be compliant with the ADA.

The ADA prohibits discrimination on the basis of disability with respect to the full and equal enjoyment of the goods, services, and accommodations of any place of public accommodation. In practical terms, this means that a website should have reasonable modifications that enable people with disabilities, such as those who are visually or hearing impaired, to use the website. What modifications are reasonable? For internet websites, there is no legal authority.

There is, however, an aspirational standard for what a website should do. In 1999, a group of private individuals in some of the world's industrial democracies, who agreed to work together on internet standards under the name "World Wide Web Consortium," and who have a website at www.w3.org, wrote and proposed "Web Content Accessibility Guidelines" to make internet websites more accessible for people with disabilities. These Guidelines were updated in 2008 and are generally referred to as "WCAG 2.0," for short. Examples of the Guidelines include allowing a visitor to access all features of a website with only a keyboard, without having to use a mouse; including, in photographs, embedded text which describes the photograph and which is legible by software for the visually impaired; and in videos, including captions.

WCAG 2.0 is advisory only, because the World Wide Web Consortium has no legal authority to make any laws or regulations. On the other hand, the United States Department of Justice ("DOJ"), which has authority to bring actions to enforce the ADA, recently settled ADA actions against major retail websites, and the DOJ and the retailers agreed that the retailers would bring their websites up to the WCAG 2.0 guidelines. In addition, the DOJ has said that it intends to issue its own guidelines by 2018, which will describe what standards websites must meet to avoid DOJ enforcement action. The DOJ guidelines might or might not be similar to WCAG 2.0 guidelines. Despite the uncertainty, some designers and suppliers of website services are in the process of bringing them up to WCAG 2.0 by 2018.

Even the DOJ standards will not be conclusive, however, because the ultimate determination whether a website meets the requirements of the ADA will be made by a court hearing a particular case. In most cases, the best thing to do will be to forward that letter to your own lawyer, who can advise you whether you need to take any further action.