Amid the COVID-19 pandemic, we’ve seen a hasty shift to doing business online by many companies and organizations, including schools, colleges and universities who were thrust into online learning this past Spring. It is critical that these organizations closely examine the accessibility of their websites, podcasts and online tools for people with disabilities in order to avoid potential claims being made against them under the Americans with Disabilities Act (ADA).
Lawsuits regarding the accessibility of online platforms have increased dramatically in recent years. While there are no federal or state guidelines regarding what makes a website accessible, courts have ruled that Title III of the ADA, which prohibits discrimination on the basis of disability in the activities of places of public accommodation, applies to websites since they are considered places of public accommodation.
The ADA is a strict liability law which means there are no defenses for violations.
With no clear guidelines for compliance, courts have looked to the Web Content Accessibility Guidelines (WCAG) developed by the Worldwide Web Consortium (W3C) - specifically WCAG 2.0, and its successor WCAG 2.1 - as the standard for compliance.
In February of this year, a deaf individual filed a lawsuit against Peloton for failing to design their website in a way that would be accessible to deaf and hard-of-hearing people. For example, videos on the website did not include closed captioning for the audio portion of the videos on the website. This is one of a string of cases filed by the same plaintiff in the past year against companies including Wayfair, Home Depot, Walmart, and Dick’s Sporting Goods. In all, this plaintiff has filed at least 30 cases.
Previous notable website accessibility cases include those filed against Nike, Amazon, Domino’s Pizza, Converse, the Wall Street Journal, CNN, Fox News Network, and Netflix.
As many colleges and universities shift to online courses, these institutions should be especially concerned about the accessibility of their online courses. Over the past several years, dozens of universities have been sued over the accessibility of their websites, including Harvard, MIT, Northeastern University, Cornell University, Vanderbilt University and many more.
A look at a few prominent cases:
Harvard and MIT:
In 2016, Harvard University and the Massachusetts Institute of Technology were both sued by the National Association of the Deaf (NAD) for non-accessible web content. The NAD claimed that the schools had discriminated against deaf people as their websites failed to make online video content accessible with adequate captions. On November 27, 2019 the National Association of the Deaf, along with other hearing-impaired individuals, announced a civil rights settlement with MIT, and later announced a similar settlement with Harvard.
Nike was sued in 2017, the lawsuit came from a visually impaired individual, who argued that the website was not accessible for those using screen reading software. The plaintiff also claimed that there were also no alt-tags for images, empty links without text, and other non-accessible features. The case was dismissed after Nike and the plaintiff reached a settlement agreement.
The NAD filed another lawsuit against Hulu in 2016, claiming that there was an accessibility issue due to the lack of closed captions for the video content on Hulu’s streaming service. The ADA lawsuit settlement agreed to the resolution and Hulu agreed to make content available with full captions.
Steps to Ensuring Compliance:
Website accessibility applies to any business with a website. To begin the process of making your website compliant, consider taking the following steps:
- Review the WCAG guidelines overview on the W3C website, which provide a universal standard for web content accessibility.
- Get started right away, as putting off compliance could cost you. The goal should be to rebuild your online content to make it so that everyone – including persons with disabilities – can access all of the content, navigate the website, and enjoy equal use of your website.
- Pay special attention to Alt Text (alternative text). One of the most common complaints in recent lawsuits is a lack of alt text. Alt text should be provided for all images, so that those using screen readers can understand the message you wish to convey through the use of images on the page. When creating alt text, the text should accurately portray the message you are conveying through the image. If the image includes text, that text should be included in the alt as well.
- Provide transcripts for any video and audio content. In addition to any closed captions, text transcripts are a necessary tool that aid hearing-impaired persons in understanding this content. Without these transcripts, it may be otherwise inaccessible to these individuals.
- Review your website format to make sure you have a consistent and organized layout, and elements such as headings, buttons and links are legible. Keep in mind, some smaller fonts or light-colored text may be illegible for users with disabilities, as well as other formatting factors.
If you have questions about how the laws regarding website accessibility may affect your organization, please contact us.