A New Wave of Website Accessibility Litigation: Employers Beware
Employers across the country continue to face potential litigation over the accessibility of their websites to individuals with disabilities. The increase in website accessibility litigation under the Americans with Disabilities Act (ADA) comes in light of the Department of Justice's (DOJ) indefinite delay in promulgating regulations on website compliance standards and various court rulings, which effectively have encouraged businesses to reevaluate their accessibility policies.
Visually impaired individuals have been increasingly challenging the online job application systems of numerous employers under applicable state employment statutes. These statutes—unlike the ADA—have the potential to provide plaintiffs relief in the form of monetary damages. Specifically, plaintiffs are alleging that various companies' online job application pages are not designed to be fully accessible to visually impaired individuals, who often require the use of assistive technology—such as screen-reader software.
Currently, federal courts across the country are split on whether websites are, per se, covered entities subject to ADA accessibility requirements. This area of litigation continues to evolve with the notable Winn-Dixie case now pending on appeal in the U.S. Court of Appeals for the 11th Circuit. In that case, the court held that a grocery store was required to modify its website to comply with the ADA and the Web Content Accessibility Guidelines (WCAG) because the store's website was "heavily integrated" with the store's physical location. Many businesses now strive to make their websites conform to the WCAG standards.
As some courts trend toward resolving accessibility cases in favor of requiring websites to be accessible (possibly in response to DOJ's inaction), businesses are advised to review the accessibility of their websites and put in place a compliance program to address the accessibility of websites.Attorneys in Ballard Spahr's Accessibility Group regularly advise clients on accessibility matters under the ADA and have experience drafting ADA and digital accessibility policies and procedures; guiding clients through privileged assessments and audits of websites; defending against demand letters, website
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