For US companies and their lawyers, the compliance issues associated with designing and maintaining an online presence are about to get a lot more complicated. Failing to ensure that their websites are fully accessible for people visual, hearing and manual dexterity impairments has seen an exploding number of businesses slapped with discrimination lawsuits under landmark civil rights legislation for people with disabilities.

Legal ambiguity

The legislation in question, Title III of the Americans with Disabilities Act, demands that no individual be discriminated against on the basis of disability from enjoying and benefiting from 'the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person/s who owns, leases (or leases to) a place of public accommodation.' Many have argued that websites are beyond the scope of the ADA and the definition of a 'place of public accommodation'. However, the growing number of lawsuits lodged against companies with inaccessible web platforms implies the opposite. While accessibility class actions have met with mixed results in court, an important 2008 test case brought against Target Corp by the National Federation of the Blind resulted in a $6m settlement.

Changing times

Drafted in 1990, the ADA makes no specific reference to websites. However, there is growing support for the argument that compliance with the ADA needs to match the realities of living with a disability in the digital age. 'Now that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of reaching the public would defeat the purpose of this important civil rights legislation,' wrote one federal judge in Vermont, who refused to throw out a class action lawsuit against online digital library Scribd Inc.

Managing the risk

To help mitigate the emerging risk of ADA litigation, companies must ensure that their websites are compatible with the assistive technologies that people with visual and hearing impairments or difficulties with manual dexterity use to navigate internet spaces. This could include ensuring compatibility with screen readers, voice-control software and manual keyboard navigation. However, the US Department of Justice is not expected to issue formal guidance on website compliance with Title III of the ADA until 2018. Sources: Corporate Counsel; JD Supra; National Law Review