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January 2016

Equal Access to Websites: Balancing Aesthetics and Accessibility

An Introduction to Website Accessibility under the Americans with Disabilities Act

Technology permeates nearly every aspect of modern society. Coupled with constant cutting-edge developments, it can often be difficult to keep up. Recently, businesses operating websites which offer goods and services to the public have been targeted for failing to do just that. This advisory intends to summarize important guidelines and regulations to apprise businesses of a few basic legal requirements to help foster website accessibility.

Most people understand the premise of accessibility: equal access for all. Indeed, it has been codified in the Americans with Disabilities Act as requiring that no person be “discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” (42 U.S.C. § 12182, subd. (a).) Although there is variation among circuits, many courts have found websites to be “public accommodations” for purposes of the ADA, particularly where there is a nexus between the website and physical location offering goods or services to consumers. (See, e.g., Nat’l Fed. of the Blind v. Scribd Inc. (D. Vt. Mar. 19, 2015) 97 F.Supp.3d 565, 569-70 [compiling authorities addressing whether websites are “public accommodations”].) To effectuate this anti-discrimination principle, the ADA requires reasonable modifications, including auxiliary aids and/or removal of physical and communication barriers. (Nat’l Fed. of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F.Supp.2d 946, 954 (citing 42 U.S.C. § 12182, subd. (b)(2)(A)(ii-iv).)

Complying with ADA mandates, however, has presented unique challenges for maintenance of websites. Perhaps this is attributable to the modern-day fascination with superficiality—making websites “look good.” Of course, the adage rings true in these cases. “Beauty is in the eye of the beholder,” and those suffering from certain disabilities (e.g., visual or hearing impairments) may find visually enticing websites offensive when they are inaccessible.

Achieving Accessibility

Individuals with disabilities often utilize assistive technology, including screen readers, text enlargement software, or voice control software to navigate the internet. Websites which do not properly sync with these assistive technologies effectively prevent disabled persons from equal access and enjoyment of the site.

By way of example, a graphic is not something that can be “read” by a screen reader or otherwise translated into text. Thus, to make websites containing graphics accessible, there may be a descriptive hyperlink or embedded “alternative text” code which can be processed by the assistive device. Documents only available in image-based formats have the same problem, including .PDF versions of privacy disclaimers or terms and conditions of purchase. Unless documents are posted and available in a text-based format, they will not be properly accessible under the ADA. Accordingly, text alternatives which can be translated by assistive technologies should be available for all graphic/non-text content.

Another problem arises with what web designers may perceive to be subjectively “aesthetically pleasing.” Oftentimes, websites are visually complex. They may incorporate various colors, font sizes, word art, or flashing graphics to attract and retain consumers’ attention. Unless these aesthetics can be manipulated (or disabled) by the user, the website may be inaccessible. For instance, individuals with certain visual impairments may not be able to process certain colors or font settings. Individuals who suffer from seizures may not be able to view flashing graphics. These ramifications should be considered before subjectively enticing visual effects are added to some categories of websites.

Finally, some users may be unable to utilize a mouse effectively. Thus, websites must have functions allowing for manual keyboard control.

Conclusion & Recommendation

In light of ever-evolving innovative technologies, it is increasingly important for businesses to stay current on industry standards that may affect their operations. Pursuant to its mandate under the ADA, it is anticipated that the U.S. Department of Justice will be incorporating those standards into regulations in the not too distant future. Businesses that use internet to market products and services to a broader customer base must, therefore, consider the needs of individuals affected by disabilities who seek internet access to those goods and services. It is advisable that businesses using a website to market goods and services make those websites fully accessible under the ADA and any applicable state accessibility laws.

Attorneys in the Hospitality and Labor & Employment Practice Groups at Gordon & Rees, LLP work with qualified disability specialists and are available to assist businesses and website operators with any questions or concerns they may have related to potential pitfalls of innovative website design.

Employment Law

Jan K. Buddingh

Employment Law