Avoiding Litigation - How Accessibility is Good Business

Website accessibility and compliance for people with disabilities is becoming ever more critical for businesses operating in the tourism and hospitality spaces.  These industries are becoming increasingly important economic drivers.  This is particularly true as American families, emerging blurry-eyed, frazzled and vitamin D deprived, from years of remote work and Pandemic lock-down, crammed with Netflix binging, endless, soul-crushing family game nights and booze to break up the monotony, rush to “get away” on vacation to somewhere, anywhere.  Anyplace will do, so long as it’s not virtual.  (Well, maybe not Ukraine, North Korea or Jersey, but you get the idea.)  And, of course, the expanding pockets of your businesses puts a target on your collective backsides.  And who’s aiming?  Friendly-neighborhood plaintiff attorneys, that’s who.

The Americans with Disabilities Act (the “ADA”) requires websites to be accessible by individuals with disabilities.  The Web Content Accessibility Guidelines (“WCAG”) were developed by the World Wide Web Consortium (“W3C”) to provide guidelines for creating accessible web content.  Failing to do so invites trouble.

The ADA prohibits disability discrimination in all walks of public life, including public accommodations.  More and more, courts are applying the ADA websites (including tourism and hospitality sites offering ski weekends to beach getaways and everything in between).  This means your websites must be accessible to individuals with disabilities.  While there is no definitive law or regulation dictating if a website is accessible for ADA purposes, the WCAG has often been relied on for determining whether sites violate the ADA and is being used by both the United States Department of Justice, as well as several courts, in determining if sites are accessible.

The WCAG was first published in 1999.  The guidelines a set of recommendations for making web content more accessible to individuals with disabilities.  These recommendations consider how to structure, modify, and present web content, focusing on text, images, audio, and video, to ensure that they can be accessed by people with visual, auditory, physical, speech, cognitive, or neurological disabilities.  The WCAG is organized into three levels of what the W3C ominously calls, “conformance”: A, AA, and AAA, with each level providing progressively more comprehensive guidelines for web designers and developers to follow.  The AA level is the standard most websites should be aiming to meet, as AA-compliant sites are considered accessible to the widest range of people with disabilities.  This level balances a high level of accessibility without being overly burdensome.

Maximizing the likelihood that your website will be ADA compliant by using the WCAG isn’t as simple as taking unfair cheap shots at New Jersey.  (For example, why is Jersey called the Garden State?  Because “Land of Toxic Waste Dumps and Highways Designed by Paranoid Schizophrenics” didn’t fit on a license plate.  But I digress.)  Many businesses are hiring accessibility consultants or using automated testing tools to proactively identify potential issues on their sites.  Further, third-party certification programs, such as the Bureau of Internet Accessibility Certification, can provide a seal of approval indicating that a website meets certain accessibility standards.

In addition to avoiding the litigious clutches of virtual ambulance chasers, accessibility is good business.  By following the WCAG and working with accessibility consultants or certification programs, your business can create a website that is accessible to all users, regardless of their abilities.

Unless they’re from Jersey.  Then all bets are off.

This article is intended to be used for informational purposes only.  Legal advice is neither implied by the author nor should be inferred by the reader.  If you have specific legal questions, you should consult with your attorney.

Jeffrey Sculley, a proud son of the Garden State, was born in Jersey City, spent his childhood summering in the pastoral climes of Fort Lee, North Bergen and Secaucus, and apologizes for the cheap shots.  He may be reached at jsculley@cmrlaw.com and is an attorney and counselor at law focusing his practice on representing commercial and residential landlords; providing backroom human resource and employment support to businesses and not-for-profits; appealing adverse trial-court and administrative decisions; counseling clients on logo and brand development and trademark protection; and representing clients in all types of administrative, regulatory and compliance matters, before governmental agencies and administrative hearing officers and law judges.