What is the ADA?
In 1990, President George Bush signed into law the Americans with Disabilities Act (ADA), which is the most significant law in America concerning accessibility and civil rights for people with disabilities, including web accessibility. The ADA aims to prevent discrimination based on a person's ability or disability. Disability activists and advocates campaigned for two years to advance civil rights for marginalized groups, including Americans with disabilities. They intensely lobbied for laws that would prohibit discrimination, and by 1988, they gained cross-partisan support for federal legislation.
The ADA builds on the precedent set by Section 504 of the Rehabilitation Act, which guarantees certain rights to people with disabilities. However, the Rehabilitation Act was very limited and only applied to the government sector, later amended and updated by Section 508.
What does the ADA cover?
ADA is a very broad and wide-ranging piece of legislation that covers a lot of different aspects of accessibility for people with disabilities. The part of the ADA that affects the way that businesses serve customers is called “Title III,” so you’ll hear accessibility legislation referred to “ADA Title III”.
ADA Title III covers public areas, like schooling and transportation, and “public accommodations.” “Public accommodations” is a legal phrase that includes businesses, restaurants, hotels, theaters, doctor's offices, pharmacies, retail stores, museums, libraries, parks, daycare centers, and almost every place of work.
ADA Requirements are Twofold
1. Employers have to make accommodations for employees with disabilities to be able to do their jobs, including disabled-friendly entrances, disabled-friendly bathrooms, and the right kind of chairs, desks, and office equipment.
2. Businesses of all types have to make it possible for customers with disabilities to access their services. The law requires them to make "reasonable modifications" to their premises when necessary, so that they can serve people with disabilities. This includes things like wheelchair ramps for entrance into buildings, accessible bathrooms, American Sign Language (ASL) interpretations, and accommodation for service animals.
Required accommodations at places of business for disabled individuals include:
Ramp access for wheelchairs and other mobility devices
Interface mechanisms for visually impaired
Interpretive devices for the hearing impaired or qualified interpreters
Accommodations for service animals
2018 Updates to ADA
28 years after President Bush signed the original 1990 bill, his son, President George W. Bush signed major changes to the ADA into law.
Who Counts As “disabled”?
The revision that had the most impact was related to the definition of a disability. Initially, the ADA defined a person with a disability as someone with a condition that "substantially limits major life activities." However, courts interpreted this language conservatively, resulting in dismissal of several ADA lawsuits such as the well-known Sutton v. United Airlines case of 1999 and Toyota v. Williams in 2002, because the plaintiff was not considered to have a disability.
In 2018, this definition was expanded to include daily activities such as self-care or manual tasks as major life activities. It also encompassed impairments to significant bodily functions, including neurological, digestive, and respiratory functions, as legal disabilities.
Who has to be ADA compliant?
There’s a common misbelief that ADA only applies to very large corporations, but that’s a serious mistake. All types and all sizes of businesses have to comply with ADA legislation, for their customers, and for their employees if there are over 15 employees. That means that ADA affects:
Places of entertainment like theaters, movie theaters, and concert halls
Restaurants and eateries
Small and medium businesses of all types
Local government offices, employment agencies, and labor unions
Is ADA Compliance Mandatory For Websites?
Initially, it was evident that ADA applied to all kinds of physical businesses, but its coverage of websites and online spaces was not apparent. The ADA bill of 1990 did not anticipate the massive scale of internet use we see today. In the last decade, U.S. court rulings have been inconsistent on whether websites are considered "public places of accommodation" under ADA. However, the growing significance of websites in the way businesses interact with customers led to a shift in the application of ADA to web accessibility. Disability rights activists, legal experts, and court decisions have agreed since 2017 that websites, online portals, and stores must also be accessible to people with disabilities.
Assistant Attorney General Stephen Boyd wrote a letter to Congress members in September 2018, stating that the Department's interpretation that ADA applies to public accommodations' websites has been consistent for over 20 years. This interpretation aligns with the ADA's mandate that goods, services, activities, and privileges offered by public accommodations must be equally accessible to individuals with disabilities. Nowadays, U.S. courts apply ADA accessibility requirements to the online domain, making it necessary for websites to comply with ADA regulations.
Are Businesses Getting Sued For Not Being Fully ADA Compliant?
ADA’s relevance to web accessibility isn’t just theoretical. Since 2017, the number of ADA title III-related lawsuits has skyrocketed. In 2017, 816 ADA Title III lawsuits were filed, but in 2018 that number rose to over 2,200 cases. That’s a rise of 180%, and it’s only the tip of the iceberg. It doesn’t reveal the increasing number of ADA legal complaints and lawyers’ demand letters that were filed against businesses with non-accessible websites in the last few years, because they never become part of the public record.
Experts estimate that approximately 40,000 demand letters were sent in 2018, and 2019 has peaked with over 100,000 demand letters and over 10,000 lawsuits.
In 2020, 265,000 demand letters were sent. This represents a steep incline in legal actions pursued following the notice of non-accessible websites on the internet. The number of Title lll ADA lawsuits also climbed in 2021, with at least 11,452 federal filings documented. Overall, web accessibility lawsuits have seen a 320% increase over the past eight years.
Are ADA Website Compliance Lawsuits Legitimate?
In recent years, ADA web accessibility has become a significant legal issue for a few reasons. Firstly, with the massive shift in commerce towards the digital sphere, eCommerce has exploded, with the market value skyrocketing from $449 billion in 2017 to $13 trillion in 2021. As web interactions become more central to our daily lives, accessibility on the internet has become more important. Secondly, high-profile lawsuits and the increasing knowledge about ADA Title III have spread awareness about web accessibility. People with disabilities are now aware that they have legal recourse when they cannot complete activities online. Furthermore, millennials and Generation Z are less likely to tolerate discrimination and inaccessibility. Finally, the legal landscape in the US makes it very advantageous for a person with disabilities to sue businesses under ADA Title III. Unlike other areas of the law, the defendant must pay the plaintiff's legal fees, so a disabled user has nothing to lose by filing a lawsuit. Moreover, the DOJ has made it clear through a series of findings, settlement agreements, and an official letter to lawmakers that ADA compliance includes web accessibility. As a result, the vast majority of ADA Title III lawsuits favor the plaintiff.
Should Small Businesses Worry About ADA Lawsuits?
Web accessibility cases against giants like Domino's, Nike, and Beyonce made the headlines, but the majority of lawsuits have been filed against small and medium businesses. It’s estimated that 85% of ADA lawsuits in federal and state courts in 2018 were filed against small and medium retail businesses.
Since it’s almost inevitable that the court would find in favor of the plaintiff, small business owners often feel that they have no choice but to settle out of court. The cost of defending a lawsuit would destroy even a medium-sized business, but the average ADA website lawsuit settlement still comes to $35,000.
The implications are clear: a non-accessible website is a major liability for any company operating on the web today. It’s worth remembering that the market for people with disabilities is also rising. At around $21 billion, it’s worth more than the African-American and the Hispanic markets combined.
In 2019, digital accessibility has become a fundamental principle for all marketers and businesses who understand that users’ needs always come first. If you want to keep your business safe from ADA web accessibility lawsuits, appeal to customers with disabilities, and feel that you are upholding the social fabric, you need an accessibility solution for your website.
What are the ADA Website Compliance Standards?
Part of what makes ADA title III compliance so difficult is that the law doesn’t specify what you need to do to make your website accessible. As Assistant Attorney General Boyd wrote to Congress: “Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
Although the DOJ has declined to adopt any official legal standard for the ADA, it has frequently referenced the Web Content Accessibility Guidelines (WCAG) 2.0. Many rulings set WCAG 2.0 Level AA as the goal for website accessibility, even though this isn’t codified into law. At the moment, WCAG 2.1 is the best measure of web accessibility when it comes to federal law, and it’s unlikely that a site that’s WCAG 2.1 Level AA compliant would be sued for lack of accessibility.
How can you know if your website is ADA compliant?
Free auditing tools are available online to check your website’s accessibility and compliance levels with ease. With accessScan, accessiBe’s ADA compliance checker, you’re presented a holistic overview of accessibility errors and what needs to be adjusted in order to comply with WCAG 2.1 Level AA guidelines. The scan operates in just a few seconds, providing you with an almost-immediate answer to whether your website is ADA Title lll compliant or not.
ADA compliance doesn't have to be complicated. AccessiBe's easy-to-use software ensures your website meets all requirements. Learn more at https://accessibe.com/.