Persons with disabilities needing a meaningfully accessible website generally break down into three different types of users: 1) those using screen readers; 2) those using voice dictation technology; and 3) those who are Deaf (a person with a severe to profound hearing loss, ASL is their first language, and they attended a state school for the deaf), deaf (a person with a severe to profound hearing loss), or hard of hearing (a person with any hearing loss). For those using screen readers and voice dictation technology, the solution is similar as both involve a matter of coding. For the Deaf, deaf, and hard of hearing individuals it comes down to a matter of providing captioning that is meaningfully accessible to the individual or providing sign language interpreters.
Title III of the ADA applies to places of public accommodations regardless of size. Under 42 U.S.C. §12181(7)(F), a lawyer’s office is specifically listed as a place of public accommodation. Also, the vast majority of lawyers practice from a physical space where people actually can go to that place to discuss matters with their lawyers. Not all of us do that. I myself have been practicing law virtually for years. There are several law firms that are either completely virtual or have set up virtual parts of their firm. With respect to a law firm with a typical law office, there can be little doubt that the website needs to be meaningfully accessible to persons with disabilities because such a website is acting as a gateway to a brick-and-mortar location. Cullen v. Netflix, Inc., 600 F. App’x 508 (9th Cir. 2015). With respect to virtual law firms, the fact that lawyer’s offices are specifically mentioned as a place of public accommodation strongly suggests that virtual law firms also need to have their websites meaningfully accessible to people with disabilities. See National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015). Having your website meaningfully accessible to people with disabilities also makes good business sense as persons with disabilities are a sizable market (in 2018, AIR reported that after-tax disposable income for working age persons with disabilities with $490 billion. Discretionary income for working age people with disabilities was $21 billion).
“ADA compliant website,” is a term frequently used but is not a thing in so far as the law is concerned. Under the Obama administration, regulations were proposed with respect to how websites could be ADA compliant. The idea was to utilize the Web Content Accessibility Guidelines different levels, perhaps depending upon the size of the business, as a way of determining whether an ADA compliant website existed. However, after Pres. Trump was elected, those proposed regulations were withdrawn and put on inactive status. DOJ has recently issued a notice of intent for two propose rules with respect to nonfederal governmental entities (title II entities), obligations regarding Internet accessibility. We have yet to see a similar notice from DOJ regarding places of public accommodation (title III entities). It is certainly possible that the rulemaking process for title II entities will heavily influence the rulemaking process for title III entities. For now, what we are left with is the legal standard of meaningful accessibility and preventive law tools, such as §508 of the Rehabilitation Act standards (used by the federal government), and WCAG (Web Content Accessibility Guidelines).
The term “meaningful access,” as a legal standard comes from Alexander v. Choate, 469 U.S. 287, 301-302 (1985) where the court said that persons with disabilities are entitled under §504 of the Rehabilitation Act, to meaningful access to a State’s programs, benefits, and activities. Since the ADA and the Rehabilitation Act get interpreted the same way, that standard has carried over to the ADA. I prefer to think of meaningful access in the same way that I think of reasonable modifications under title II and title III of the ADA. That is, what modifications can be made to get the person with the disability to the same starting line as a person without a disability without constituting an undue burden or a fundamental alteration to the nature of the business. Undue burden is going to be very difficult to show as it involves looking to the entire resources of the entity. 28 C.F.R. §36.104. Fundamental alteration will also be difficult to show as that involves showing that the operations of the website would be turned upside down by the modification. See, PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). When it comes to a website, it is hard to believe that the operations of the entity would be turned upside down by any modification to improve the website.
The best way to get to meaningful accessibility for your website involves the following:
1) using a platform for your site that is meaningfully accessible to persons with disabilities;
2) beta testing the website to ensure that individuals with disabilities have meaningful access;
3) utilizing WCAG 2.1 et. ff. as a preventive law tool; and
4) remembering that the ADA always requires an individualized analysis.
With respect to using a platform that is meaningfully accessible to persons with disabilities, there are some companies that are doing that. Regardless of the company you select, you want to make sure that: the company is committed to complying with WCAG 2.1 et. ff.; they have personnel to continually make adjustments to the website by a variety of persons with disabilities to ensure WCAG compliance; and they have the ability to make whatever changes are necessary when individual situations arise that may or may not be covered by the WCAG guidelines. Building the website from the beginning to be meaningfully accessible is much more cost-effective then revising it later. Useful steps that you can take with respect to getting your website where it needs to be are:
- Figure out whether to remediate or rebuild.
- Test and Audit.
- Plan and communicate.
- Fix and verify.
- Accessibility policy page.
- Document, train, and maintain.
The Web Content Accessibility Guidelines are put together by an international consortium. It does not have the legal effect of law but it is an excellent preventive law tool. It is also being used by DOJ as a condition of settlement and web accessibility cases. I have also recently seen private parties use WCAG in settlements as well. It is currently in 2.1, and a 2.2 draft is in the works. It has three different levels (A, AA, and AAA), and underpinning it are four different principles:
- Perceivable: content on your website that have to be available to everyone viewing the website;
- Operable: the web design and overall interface can’t restrict a person with a disability use;
- Understandable: website must be clearly understood by everyone;
- Robust: website have to be accessible across browsers and devices.
Go with the AA level compliance. AAA is aspirational. Remember that there may be issues where you are being consistent with WCAG level AA, but the website is still not meaningfully accessible to a particular person with a disability. Since the ADA requires an individualized analysis, PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), you will still need to make adjustment to your website if the website is not meaningfully accessible to a person with a disability even if the website is WCAG level AA compliant.
What about contracting out to a place and give them the responsibility for maintaining meaningful access for persons with disabilities consistent with the WCAG guidelines (which again are not a legal standard, but great preventive law)? The answer to that question is you can certainly contract out the website hosting and management of the website with respect to accessibility, but the responsibility remains yours because the ADA is a nondelegable duty. Rolf Jensen and Associates, Inc. v. Eighth Judicial District Court of the State of Nevada 282 P.3d 743 (Nev. 2012). The DOJ has also taken the position that the ADA is a nondelegable duty as well. See, May 31, 2022 DOJ statement of interest in A.V. v. Douglas County School District Re-1, Docket #21-CV-00704.
In all of this, you can’t forget about effective communication rules in title III of the ADA (for purposes of this article, I am focusing on private law firms).
Here is how the effective communication rules work. Keep in mind, there is a significant difference between the effective communication rules that nonfederal governmental entities (title II), have to use v. the effective communication rule applicable to places of public accommodations. The effective communication rules require that communication with individuals with disabilities must be substantially equal to communication with those without disabilities. Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 834-835 (11th Cir. 2017). The rule is not restricted to the hearing loss community. Under the rule, people with disabilities affecting communication are entitled to auxiliary aids and services unless the result is a fundamental alteration or undue burden. 28 C.F.R. §36.303(a). There is case law saying that the provision of auxiliary aids and services is only required for those with disabilities affecting communication. The purpose of auxiliary aids and services is to achieve effective communication. Do not make the mistake of charging fees for the auxiliary aids and services regardless of what name you might give such charges, example honorarium. Just what are auxiliary aids or services? Auxiliary aids or services include but are not limited to: assistive listening systems; qualified American Sign Language interpreters or other types of interpreters for persons with hearing loss; communication access real-time translation/real-time transcription services or what is also known as ASR; streaming on cell phone; accessible format such as large print, braille, electronic document, or audiotapes; and qualified readers. 28 C.F.R. §36.303(b)(1). The critical difference between the effective communication rule for places of public accommodations, title III entities, and for nonfederal governmental entities, title II entities, is that for nonfederal governmental entities primary consideration must be given to an individual’s choice of auxiliary aid or service. 28 C.F.R. §35.160(b)(2) With respect to places of public accommodations, the interactive process with the individual is strongly encouraged. 28 C.F.R. §36.303(c)(1)(ii). Finally, with respect to places of public accommodations after use of the strongly encouraged interactive process, the place of public accommodation ultimately get the decision as to what auxiliary aid or service to furnish.
Before leaving the effective communication rule, lawyers need to be aware of Silva v. Baptist Health South Florida, Inc., 856 F.3d 824 (11th Cir. 2017), mentioned above as well. In that case, the 11th Circuit held in a Rehabilitation Act matter (§504), that if information is provided in a way that really hinders a culturally deaf individual from understanding the information necessary to make an informed consent, then that method is not effective communication. As mentioned earlier, the ADA and the Rehabilitation Act get interpreted in the same way. Even though Silva occurred in the medical context (a hospital refused to give an ASL interpreter to a patient), the law, like medicine, also has informed consent requirements. So, whether your law firm is dealing with effective communication via its website or in person with a person with a disability who has communication disabilities, you need to be aware of the effective communication rules. Remember, you have to bear the cost for any expense associated with providing auxiliary aids and services.
Sometimes lawsuits are inevitable, what defenses are available if you do get sued. A list of possible defenses are several. First, arguing that the plaintiff does not have standing to bring a lawsuit. This approach has been successfully used in credit union cases and some hotel website cases. There is also a split in the U.S. Circuit Court of Appeals on whether deterrence or something more (whatever something more may mean may also vary from jurisdiction to jurisdiction), is required with respect to standing. Finally, there are two recent Supreme Court decisions that raise a real question of whether testers claiming violations of title III of the ADA can ever have standing. That conclusion stems from the Supreme Court decision in Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219 (U.S. Apr. 28, 2022), that emotional distress damages are not available under the Rehabilitation Act and from the Supreme Court conclusion in Transunion LLC v. Ramirez, No. 20-297 (U.S. June 25, 2021) holding that statutory violations in and of themselves are not sufficient for standing. Since a circuit court split exists, it is only a matter of time before the Supreme Court weighs in.
Second, the defense might argue that goods do not have to be accessible just only services. However, the line between the two of those can be quite small. See, Panarra v. HTC Corp., 20-CV-6991-FPG (W.D.N.Y. Jan. 5, 2022).
Third, both the arguments of due process violations and primary jurisdiction (the argument that because administrative agency have not offered any guidances, defendants should not have to worry about ADA compliance), are not being persuasive in the courts.
Fourth, the defendant could raise mootness. However since the web is constantly changing, mootness is a very difficult argument to make.
Finally, in Georgia and Florida you are seeing ethics complaints filed with the State Bar. In California, there are suits by District Attorneys (two different district attorneys in California are going after a California law firm that does a lot of serial website litigation).
To sum it all up, there is little doubt that law firm websites must be meaningfully accessible to persons with disabilities. Since no regulations exist yet describing what meaningfully accessible is, law firms have a great deal of flexibility in developing a meaningfully accessible website. That said, regardless of how the law firm does it the website must be meaningfully accessible. Remember, the obligation of the law firm to have a meaningfully accessible website is a non delegable duty. Finally, don’t forget about effective communication rules.
