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Is your Ohio business website ADA compliant? You may be a lawsuit target if not.

By August 21, 2019November 12th, 2021No Comments

Are you an Ohio business with a brick-and-mortar location? Do you have a website with a nexus to that brick-and-mortar location? Congratulations, you must now comply with the Americans with Disabilities Act (“ADA”) “requirements” to make your website accessible to people with disabilities or be subject to the increasing rash of lawsuits seeking damages and attorney fees.

Illustration of a tablet with the words "website accessibility"

What does it mean that your website must be compliant? The courts don’t really know, but they are quite willing to tell you that you must comply.[1] Multiple standards have been asserted as in compliance with the ADA, including the Web Content Accessibility Guidelines (WCAG 2.0), but courts have regularly refused to explicitly adopt any specific standard of compliance as a minimum requirement for the ADA.

Instead, courts have sidestepped the question of “how does a website comply with the ADA” and instead focused on the question of whether there are articulable and comprehensible standards to which a website must conform, to which, somehow, the answer is yes.[2] As restated by the ninth circuit regarding the ADA’s application to websites, “[a] statute is vague not when it prohibits conduct according ‘to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’ ”.[3] Moreover, “[b]ecause the ADA is a statute that regulates commercial conduct, it is reviewed under a less stringent standard of specificity” than, for example, criminal laws or restrictions on speech. Id.[4] Therefore, the ADA would be vague “only if it is so indefinite in its terms that it fails to articulate comprehensible standards to which a person’s conduct must conform.” Id.

None of this is particularly helpful to businesses who are trying to determine what technical requirements their websites must have to comply with the ADA. There are, however, some general rules of thumb:

  • Make sure your website is compliant with WCAG 2.0 guidelines, including having text in your website capable of being read by a screen-reader.
  • Include indemnification clauses in your contracts with any party creating your website, and include a requirement that the website creating/maintaining party has sufficient insurance to cover a suit.

The easiest way to do this is to have WCAG 2.0 compliance built into the original website, rather than attempt to strap on-screen reading compatibility after the fact. If that’s not doable and you already have a website up and running, work to get your website as compliant as possible by bringing on a WCAG 2.0 compliant website designer.

[1] Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 882 (N.D. Ohio 2018)

[2] Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 906 (9th Cir. 2019)

[3] Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) )

[4] Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)

 

Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A, and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.

This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.

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