Over the course of the last few months, members of Congress as well as state attorneys general have requested that (former) United States Attorney General Jeffrey Sessions provide further details about what requirements business websites and HR career portals must meet to comply with the Americans with Disabilities Act (ADA). At the moment, it is currently not clear whether the ADA even applies to business websites, which has left businesses with little guidance in terms of compliance and how to respond to complaints of non-compliance. Even more perplexingly, the Department of Justice recently responded to a request for clarification on this matter but provided few answers.
Increase in the Number of ADA Lawsuits
Data reveals that more than 1,000 lawsuits alleging website violations under Title III of the ADA were filed in federal court from January to June of 2018, which marks a substantial increase from 2017 when only 800 ADA lawsuits were filed.
Many of the lawsuits that were filed claim that business websites fail to adequately accommodate hearing or vision-impaired users in violation of Title III of the ADA, which states that no individual shall be discriminated against on the basis of his or her disability in the full and equal enjoyment of accommodations, advantages, goods, facilities, and services by any individual who owns, leases, or operates a place of public accommodation.
Other lawsuits claim that business websites violate Title I of the ADA, which prohibits employment discrimination against qualified candidates with disabilities. Discrimination of this kind can be alleged when a business utilizes an online career portal that is not accessible to all potential job applicants.
Government Response to the Increase in ADA Litigation
In response to this increased number of ADA lawsuits, in June of 2018, 103 Congress members sent a letter to Attorney General Sessions requesting that the Department of Justice provide guidance and clarity concerning website accessibility. The letter claimed that many of these ADA lawsuits are filed to obtain financial settlements and held little relationship to the improvement of website accessibility.
After this letter, 19 state attorneys general also wrote Attorney General Sessions to request that the Department of Justice provide specific regulations about how the ADA applies to websites.
In an additional letter dated September 4, 2018, six senators wrote to Attorney General Sessions stating their concern about how ADA regulations applied to websites. This letter requested a Department of Justice briefing on the matter by September 28, 2018.
Response by the Department of Justice
The Department of Justice has not issued regulations addressing website accessibility and ADA compliance. In September of 2018, the Department of Justice issued a letter to Congress stating that the department is determining whether specific requirements for websites are necessary and appropriate to make sure that companies are in compliance with the Americans with Disabilities Act.
As an alternative, the letter proposed that Congress could pass legislation related to the ADA and websites. The letter also states that without the adoption of specific technical requirements for websites, a great degree of flexibility exists in how websites decide to comply with the ADA’s requirements concerning effective communication and nondiscrimination.
Speak with a Knowledgeable Employment Lawyer
Because the requirements for ADA compliance are still unknown, it is important for businesses to consider utilizing employment practices liability insurance coverage to minimize the potential legal penalties. We will wait with interest to see if legislation is forthcoming to address this issue.