By Creditors’ Rights & Bankruptcy and Litigation Practice Groups
Recently in Oregon, trial attorneys have been targeting small businesses by alleging that their websites are not compliant with the Americans with Disabilities Act (“ADA”). These claims assert that blind individuals, who use screen reading software to use computers, cannot access a website unless it is set up and coded in a compatible way with the screen reading software. Two recent cases filed in Oregon federal courts against two credit unions illustrate an increasing nationwide trend targeting businesses and financial institutions with such ADA claims. Based on recent court decisions awarding similar plaintiffs money damages, this trend is unlikely to disappear any time soon.
The Lack of Regulatory Standards for Public Websites
To make a website accessible for blind individuals, the website must be coded and set up in a very particular way. However, there is no standard guidance for businesses to rely on to determine just how a website should be set up and coded to be accessible to blind individuals using screen reading software. The Department of Justice (“DOJ”) has not issued guidance, and there are no clear industry standards on website accessibility, leaving many in the dark about how to comply with the ADA.
This lack of standards has created an opening for litigation. Several courts nationwide have allowed similar complaints by blind individuals to continue to trial. Importantly, one Florida federal court has held, after a non-jury trial, that a public supermarket’s website violated the ADA for failure to have or modify its website to make it accessible for blind individuals to use. This nationwide momentum from court decisions may result in similar litigation against businesses, including financial institutions, in the future.
How Businesses, including Financial Institutions, Can Decrease the Risk of Getting Sued
Without clear standards, businesses should use what guidance is available when setting up and coding their websites. In current litigation, plaintiffs are developing their own sources for alleged ADA compliance standards that have received approval from some courts. The World Wide Web Consortium (“W3C”), an international community group whose goal, according to its website, is to “develop[] open standards to ensure the long-term growth of the Web,” has promulgated such standards. The most recent guidelines developed by W3C are called the Web Content Accessibility Guidelines (“WCAG 2.0”). Both recent cases filed in Oregon allege, in part, that the credit unions’ websites were inaccessible because they failed to comply with the WCAG 2.0 guidelines. Businesses may be able to decrease, if not eliminate, their risk of similar ADA suits by complying with industry-appropriate guidelines.
The WCAG 2.0 are intended to make websites easier to navigate for blind individuals utilizing screen reading software. The guidelines focus on four main themes, to make websites more (1) Perceivable, (2) Operable, (3) Understandable, and (4) Robust. The guidelines recommend, for example, the following modifications to make a website accessible with the screen reading software and easier for blind individuals to use:
- Code invisible text by graphic images on the website
- Provide captions for graphic, music, or other multimedia on a website
- Make the website easier to navigate and find content within
- Make the website easier to see and hear content and media
- Express clear headings and sub-headings to each section and page of the website
- Set up the website so that it can be navigated using only a keyboard, and not just a mouse
The WCAG 2.0 is a professional manual intended for website “content developers, . . . tool developers,” and other website engineers who will be able to interpret the guidelines in the WCAG 2.0 and modify the website accordingly. Small businesses applying industry appropriate guidelines may need to hire an outside consultant or IT company. Alternatively, small businesses who use outside web engineers should confirm that such company complies with all industry appropriate guidelines to ensure their website addresses ADA requirements, if any.
If you own or manage a business and you are served with a demand letter complaining that your website does not meet ADA guidelines, or worse, if you are served with a complaint alleging the same, don’t ignore it. ADA litigation can be long, arduous, and expensive for any business or institution, and is particularly impactful for smaller businesses. This is true even if the ultimate decision is that the ADA does not apply to your website. Proactively work to identify or establish industry appropriate guidance and take steps to reduce the risk of becoming an easy litigation target.
If you have any questions about this article, please contact one of the attorneys in our Litigation Group. We are happy to explore risk analysis on this and other issues with you.
Elayna Matthews is an associate in the Creditors’ Rights & Bankruptcy and Litigation practice groups. The information in this article is not intended to provide legal advice. For a professional consultation, please contact Elayna Matthews or Erich Paetsch at Saalfeld Griggs PC. 503.399.1070. elayna@sglaw.com © 2018 Saalfeld Griggs PC
