Simple Website Accessibility Tips for Law Firms and Small Businesses
By Christopher Whang
There has been an immense rise in serial lawsuits alleging website accessibility issues over the last decade. At a minimum, these lawsuits cost defendants thousands of dollars each to defend, if not settle.
However, law firms and other small businesses can avoid these lawsuits by implementing a few easy fixes.
II. OVERVIEW OF THE 2010 ADA STANDARDS
While the Americans with Disabilities Act became law before the widespread use of the internet, the ADA was designed to be adaptable. Therefore, the ADA regulations are often revised and redrafted to incorporate new issues, developments, and innovations.
The 2010 ADA Standards for Accessible Design (“2010 ADAS”) are the most current and controlling Federal regulations. In California, the California Building Codes provide an additional set of requirements and rules. The 2010 ADAS sets minimum requirements—both scoping and technical—for newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.
The standards cover both Title II and Title III of the ADA. Title II of the ADA pertains to accessibility requirements for state and local government facilities. Title III of the ADA pertains to public accommodations and commercial facilities (which includes most businesses open to the public).
III. WHAT LAW FIRMS AND SMALL BUSINESSES NEED TO KNOW ABOUT WEBSITE ACCESSIBILITY
Generally, website accessibility relates to the ability of someone who is blind or has low vision to use a website with screen reading software that scans the page and reads it out loud to them. Law firms and small businesses must code their websites for this purpose. The 2010 ADAS, while covering most areas of our society, does not cover websites. In fact, as of today, there are no standards for website accessibility. However, law firms and small businesses still need to make their websites ADA-accessible.
In its 2022 guidance, the DOJ stated, “[t]he Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.” Therefore, even though the 2010 ADAS remains silent on website accessibility, its principles and themes of accessibility still apply to websites.
That said, the DOJ does provide a few guidelines regarding website accessibility, including color contrast, screen-reader compatibility, and label requirements.
The DOJ also referenced the Web Content Accessibility Guidelines (“WCAG”), which aim to provide global, uniform guidelines for website accessibility. While the DOJ has not officially accepted these guidelines, they are widely used to establish website compatibility. They are the closest we have to a uniform set of generally-accepted guidelines.
IV. RECENT RISE OF WEBSITE ACCESSIBILITY LITIGATION AGAINST SMALL BUSINESSES
Recently, we have seen a greater and greater number of website accessibility lawsuits filed in California. United States District Courts in California and California Superior Courts have strongly disapproved of serial plaintiffs filing thousands of physical barrier cases against small businesses. However, they are bound to enforce the law as written.
Furthermore, several of these website accessibility plaintiffs reside outside of California, suing California websites in federal court under diversity jurisdiction. These plaintiffs file thousands of lawsuits against California businesses by simply clicking through websites from their homes in New York or other East Coast states.
V. WEBSITE ACCESSIBILITY FIXES ARE SIMPLE
There are common issues that serial website plaintiffs look for, which are easy for law firms and small businesses to fix.
The main website issue that nearly all serial plaintiffs allege is incompatibility with screen readers. Screen reader software is designed to read paragraphs and descriptions on a webpage, along with drop-down menus, select icons, and even pictures using image descriptions. However, websites often have menus or embedded PDFs that are incompatible with screen-reader software; therefore, individuals with visual impairments cannot navigate. Fixing this is generally an easy fix for an HTML engineer.
Staying ahead of these lawsuits and retaining a website accessibility specialist to fix these issues can save law firms and small businesses thousands of dollars in legal fees and settlement costs. We recommend testing websites using https://wave.webaim.org/. Wave provides an excellent overview of accessibility issues on a given website. While the results are not always comprehensive, it does provide a decent guide to the level of accessibility a website generally provides.
VI. TERMS AND CONDITIONS
Utilizing a website's terms and conditions is another excellent way to protect against these serial website lawsuits.
In California, website-only businesses—meaning businesses with no brick-and-mortar stores—may not be considered public accommodations for purposes of the ADA. In Martinez v. Cot’N Wash (2022) 81 Cal.App.5th 1026, the Court of Appeal held that website-only businesses, without physical stores, are not considered public accommodations and cannot be held liable under Title III of the ADA.
Because of this seminal case, many California website-only businesses have incorporated language in their terms and conditions that California law controls. However, the manner in which these terms and conditions are incorporated into a website poses several issues.
a. Browsewrap Agreements
We all know that a website’s terms and conditions are almost always hidden at the bottom of a website, perhaps accessible only through a series of several clicks and hyperlinks. These terms and conditions are most likely not binding agreements.
These types of agreements are considered browsewrap agreements. They do not require any user interaction.
b. Clickwrap Agreements
The best practice for establishing binding terms and conditions is to embed them into a website using clickwrap agreements.
Clickwrap agreements require user interaction to acknowledge and even explicitly accept the terms and conditions to use the website.
For example, if a user intends to purchase an item, a pop-up appears, requesting the user to accept the terms and conditions before completing the purchase.
These types of agreements are almost always held to be binding agreements. A website developer can implement these types of agreements in a matter of minutes. While this agreement method is more cumbersome for the user, it does lead to greater enforceability of the terms therein.
Plaintiffs can bring ADA lawsuits for the most menial and trivial of issues. Clients can avoid spending thousands of dollars defending and settling ADA lawsuits by spending a few hundred dollars having a website developer implement an easy clickwrap agreement, then check the website’s accessibility issues on https://wave.webaim.org/.
These lawsuits are preventable, and the resources are out there to stop them.
Christopher Whang is a member of California Lawyers Association’s Business Law Section. He is an associate at Jeffer Mangels Butler & Mitchell LLP, representing clients in a wide range of litigation matters, particularly American with Disabilities Act (ADA) claims. In 2022, Northern California Super Lawyers named him a Rising Star.