Updated: Dec 11, 2019
Website accessibility is a hot topic in 2019. Website Accessibility refers to the ability of a person when interacting with the computer system that the computer system be accessible to all people regardless of disability type or severity of impairment. Winebrenner Designs LLC designs websites that are accessible.
The below article is reprinted from Restaurant Startup & Growth Magazine 9.14.18 Written by: Alisa P. Cleek All rights reserved.
How to Insure Your Website and Mobile Applications Comply with Title III of the Americans with Disabilities Act (ADA).
When Title III of the Americans with Disability Act (“ADA”) was signed into law on July 26, 1990, it was written to ensure that consumers with physical and other disabilities have the same access to physical places of public accommodation as non-disabled consumers. Over the last 20 years, U.S. restaurants and other retail establishments have been the subject of thousands of lawsuits alleging that various aspects of their restaurant create access barriers for disabled patrons.
These barriers include, but are not limited to, improper signage for parking spaces, the ramp being too steep from the parking space to the sidewalk, a narrow entrance door, not enough seating for disabled patrons, and bathrooms that are not easily accessed.
Restaurants are required by the ADA to remove all “physical” barriers whenever it is readily achievable to do so. It is highly unlikely legislators anticipated the ADA would apply to restaurants’ websites or mobile applications, as the World Wide Web did not go live until August 6, 1991, a year after the ADA was enacted.
The first mobile applications were not launched until July 2008, more than 15 years after the ADA was enacted. The paradigm, however, has now shifted from a restaurant’s physical facility to its website and mobile applications. Currently, one the most litigated areas regarding Title III of the ADA is whether it applies to a company advertising products and services on its website.
Restaurants should beware and ensure that they take steps when first setting up their websites and mobile applications to ensure they comply with the requirements of Title III of the ADA.
Is Your Restaurant’s Website Required to Comply with Title III of the ADA?
There is now a hotbed of ADA accessibility cases against restaurants claiming their websites are not accessible to disabled patrons. The courts are split on whether the ADA applies to all websites that fall within the twelve types of businesses classified as “places of public accommodation” such as restaurants or only those that have a physical connection to goods and services available at a physical facility.
The First (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island), Third (Delaware, New Jersey and Pennsylvania) and Seventh (Illinois, Indiana, and Wisconsin) Circuits have ruled that all websites must comply with the ADA.
As such, in these states, restaurants need take immediate steps to comply.
The Sixth (Kentucky, Michigan, Ohio, and Tennessee), Ninth (Alaska, Arizona, California, and Hawaii), and Eleventh (Alabama, Florida and Georgia) Circuits have ruled that websites do not have to comply unless there is a nexus between the website and a brick and mortar facility.
In these states, restaurants need to analyze whether their websites are linked to their physical location, and if so, immediately take steps to comply. Below is an overview of the most common elements of a website that may subject a restaurant to the compliance requirements.
The remaining Circuits have not ruled on this issue; therefore, restaurants in those states are left guessing whether they need to comply. A number of district courts within those Circuits, however, have ruled that all websites must comply, such as New York, one of the states in which the highest number of these cases are filed.
If your restaurant is located in a state comprising a circuit that has not yet ruled, we recommend that you take immediate steps to comply, as a majority of courts are leaning toward all websites complying, or are applying a very lenient standard when determining whether the website has a nexus to the physical location.
One might wonder how a restaurant’s website is “physically connected” to a physical location. If a restaurant offers online ordering, whether for delivery or pick-up at the restaurant, is it not offering its product through the website? If a restaurant offers coupons on its webpage, is it not offering a special deal that one must be able to access through the website in order to take advantage of the offer?
Many courts have found the fact that a website includes a store locator search mechanism as support for a determination that it is physically connected to the brick and mortar restaurants. As such, the Courts have set the bar fairly low with regard to the elements of a website that can satisfy the nexus between the website and the physical restaurants.
What Are the Guidelines for Compliance?
Disabled patrons want to have the same access to the products and services offered by restaurants as do non-disabled patrons. Plaintiffs’ attorneys across the country are filing a multitude of lawsuits to ensure this happens. One of the biggest issues in this regard is that Congress did not anticipate the ADA applying in cyberspace, and as such, Title III does not include any guidelines regarding website accessibility.
This failure by Congress may have slowed down the commencement of these lawsuits, but it has not dissuaded plaintiffs’ attorneys from bringing them altogether. With recent court decisions siding with plaintiffs’ attorneys representing disabled patrons, these lawsuits are beginning to be filed at fever pitch.
The Department of Justice (“DOJ”) is responsible for issuing ADA Standards, but thus far, it has failed to do so for restaurant and retail establishments. In 2003, the DOJ issued guidelines for state and local government websites. In it, the DOJ referenced the Web Content Accessibility Guidelines (“WCAG”), issued by the World Wide Web Consortium.
In 2010, the DOJ issued a notice of proposed rulemaking regarding not only websites of state and local governments but also those of public accommodations, which includes restaurants. On December 26, 2017, however, the DOJ announced that it was withdrawing the regulations and will continue to assess whether specific technical standards are necessary and appropriate.
Restaurants are therefore, left wondering whether to comply with WCAG as suggested by the DOJ in its initial guidelines for state and local governments. WCAG 2.0 Level AA Success Criteria (WCAG 2.0) that the DOJ has advocated should be followed when involved in litigation in the courts, a newer version of the WCAG guidelines, or some other criteria altogether.
Given the recent court decisions and the DOJ’s support for WCAG 2.0 in cases that it has prosecuted, restaurants are encouraged to, at a minimum, ensure their websites and mobile applications are compliant with WCAG 2.0. WCAG 2.0 is a complicated and highly technical set of guidelines that an average layperson will not understand how to implement.
The WCAG Guidance is broken down into four principles of compliance, including perceivable, operable, understandable, and robust. Under the perceivable principle, the website should provide text alternatives for non-text content, provide captions and other alternatives for multimedia, create content that can be presented in different ways (e.g., assistive technologies such as screen readers) without losing meaning, and make it easier for users to see and hear content.
Under the operable principle, restaurants must ensure that all functionality of the website is available from a keyboard, give users enough time to read and use content, refrain from using content that causes seizures, and help users navigate and find content.
Under the understandable principle, text on websites must be reasonable and understandable, content needs to appear and operate in predictable ways, and it should help users avoid and correct mistakes. Finally, the robust principle requires that the website maximize compatibility with current and future user tools.
Examples of Compliance
Examples of compliance required under these principles include providing captions for all prerecorded audio, refraining from using color as the only means of conveying visual information or prompting for a response, and providing a mechanism to pause, stop, or hide any non-essential moving, blinking, or scrolling information that starts automatically, lasts more than 5 seconds, and is presented in parallel with other content.
Websites should also provide web pages with titles that describe the topic or purpose of the page and provide labels, guidance and instructions where user input is required. Users on the website should also have the ability to resize text up to 200 percent without using assistive technology, loss of content and functionality. These are just a few of the requirements under WCAG 2.0 Level AA.
In 2018, WCAG 2.1 was published with very little differences from the prior version. The main differences are that under the operable principle, it continued to states that websites should not use content that cause seizures, but also included that they not use content that causes “physical reactions.” It also added a requirement under the operable section that it should make it easier to use inputs other than a keyboard. It would take a little extra effort to comply with WCAG 2.1 if a restaurant is just starting the process of bringing its website into compliance.
What Are the Potential Damages if Your Website is Not in Compliance?
The only damages under Title III of the ADA that are available to a private citizen who files a complaint against a restaurant for non-compliance is an injunction requiring the restaurant to comply, and attorneys’ fees are also awarded. The Department of Justice, however, has the ability to seek civil fines and penalties if it is involved in the enforcement efforts.
Restaurants need to check state laws to determine if there are state statutes that may also require compliance. For instance, in California, the Unruh Civil Rights Act (“Unruh”) requires websites to provide equal access to disabled patrons. In a recent case, a California State Court held that websites need to conform to WCAG 2.0 Level AA.
Unruh provides for a minimum of $4,000 in statutory damages for each incident of discrimination. However, in the same case, the Court recently limited the damages to $4,000 regardless of whether the consumer made numerous attempts to access the website, reasoning that the later attempts at access did not establish separate offenses for purposes of damages.
What Are the Next Steps for Restaurants?
Restaurants should consider modifying their websites to conform to WCAG 2.0 Level AA, at a minimum. There are a couple of options to do so. Restaurants can hire a website designer that understands the intricacies of the WCAG to recode their website.
If you chose this option, consider including an indemnification provision or warranties from the third party vendor in your contract that the website conforms with WCAG 2.0 Level AA. As an alternative, there are various software products that a restaurant can purchase or license that can provide website compliance.
If you want to find out if your website is compliant with the WCAG 2.0 guidelines, visit the Web Accessibility Initiative’s website at www.w3.org/WAI/ER/tools/ for a list of vendors who provide online tools to assess your website’s compliance. Many of these same vendors offer software products you can use to modify your website to be compliant.
Restaurants should also train staff on how to respond to customers’ accessibility concerns. A best practice is to provide a customer service telephone number for customers who experience difficulties using the website.
While this is not a defense to a failure to comply with the ADA, it sends a strong message to disabled patrons that you support their ability to access your website and want to cure any problems that arise with them doing so.
Editor’s note: This article is for general information only. For legal guidance specific to your business and jurisdiction, you should consult a local attorney with expertise in this area.