Government Websites and the ADA: The Accessibility Conundrum

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By Michael J. Roper, Esquire & Frank M. Mari, Esquire - Bell & Roper, P.A.

Year to date alone, plaintiffs have filed hundreds of lawsuits alleging that defendants—private businesses and governmental entities alike—are in violation of the Americans with Disabilities Act for maintaining websites, or providing content through their websites, that are not accessible to individuals with vision or hearing disabilities. Over approximately the last two years, New York and Florida have led the nation for most ADA lawsuits filed regarding website accessibility. This article focuses on ADA lawsuits brought against governmental entities under Title II of the ADA and Section 504 of the Rehabilitation Act.

Frequent subjects of recent ADA lawsuits against governmental entities in Florida have involved the accessibility of websites and PDF content hosted on those websites for individuals who are vision impaired and use screen reader software. A screen reader is assistive technology that allows an individual who is visually impaired to navigate and comprehend a website through audio prompts, keyboard commands, and spoken information. Instead of speaking information, some screen readers transmit information to a refreshable braille display.

Common issues that result in lack of accessibility for individuals with visual impairments are images that are not “tagged” with descriptions, unlabeled form fields, hyperlinks that are not described or labeled properly, PDF documents containing unrecognized text or documents created as images, inability to effectively resize pages and/or content, and insufficient color contrast. Another frequent subject of ADA lawsuits against governmental entities in Florida has been lack of closed captioning on videos provided through websites of governmental entities. Individuals who are hearing impaired have sued, claiming that videos lacking closed captioning (and other possible auxiliary aids) are inaccessible.

For recipients of federal funds, the requirements of Title II of the ADA and Section 504 of the Rehabilitation Act overlap, and courts typically analyze those claims in an identical manner. Title II of the ADA generally requires that a government entity must provide full and equal enjoyment of its services, programs, and activities to individuals with disabilities. Existing legal authority on Title II of the ADA leaves little doubt that a website of a governmental entity is a service, program, or activity of the governmental entity. Potential liability exists even absent a preceding request for accommodation of a disability by the individual plaintiff. However, some of the plaintiffs filing multiple lawsuits frequently send a form “request for accommodation” letter to a prospective defendant governmental entity shortly before filing a lawsuit.

The Department of Justice, which promulgates regulations under Title II of the ADA as well as the Rehabilitation Act, has required that public entities (1) provide full and equal enjoyment of its programs, services, and activities in the most integrated setting appropriate to people with disabilities, 28 C.F.R. § 35.130(a); (2) ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals unless the public entity can demonstrate that taking those steps to modify policies, practices, or procedures would fundamentally alter the nature of the service, program, or activity, 28 C.F.R. § 35.130(b)(7)(i); (3) ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals unless the public entity can demonstrate that legitimate safety requirements are necessary for safe operation, 28 C.F.R. § 35.130(h); and (4) ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities, 28 C.F.R. § 35.163.

The DOJ’s regulations promulgated to enforce Section 504 of the Rehabilitation Act require recipients of federal funds to “take appropriate steps to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired vision and hearing.” 28 C.F.R. § 41.51(e). Appendix A to Part 35 of the ADA regulations reemphasizes that the public entity shall honor the choice of the individual with a disability unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under § 35.164, which explicitly does not require a public entity to take any action that the entity can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. See 28 C.F.R. § 35.164; 28 C.F.R. Pt. 35 App’x A.

With respect to closed captioning of recorded video provided through a governmental entity’s website (e.g. video of board meetings), the requirement to provide closed captioning is clearer. The DOJ’s regulations require public entities provide auxiliary aids and services such as captioning when necessary to ensure effective communication with individuals who are deaf or hard of hearing. See 28 C.F.R. § 35.160. The DOJ’s regulations promulgated to enforce Section 504 of the Rehabilitation Act require recipients of federal funds to “take appropriate steps to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired vision and hearing.” 28 C.F.R. § 41.51(e). The regulations define the term “auxiliary aids and services” to include, among other things, “open and closed captioning, including real-time captioning; … or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.” 28 C.F.R. § 36.303(b).

While the DOJ has taken the position that Title II of the ADA requires state and local governments to ensure that their websites (and content provided through those websites) are accessible to individuals with disabilities, the DOJ has notably not promulgated regulations that define and detail an accessibility standard for websites of state and local governments. Rulemaking under Title II of the ADA is currently on the DOJ’s list for 2017 Inactive Actions. In absence of federal regulations, courts that have issued injunctive relief in website accessibility cases have looked to the Web Content Accessibility Guidelines (WCAG) promulgated by the World Wide Web Consortium (W3C). W3C’s accessibility guidelines have also been used to define the minimum standard of accessibility for many settlement agreements and consent decrees reached to resolve website accessibility lawsuits. The most up-to-date edition of these guidelines is WCAG 2.1, which was published on June 5, 2018 and is available at: https://www.w3.org/TR/WCAG21.

To prevail on a claim under Title II of the ADA, a plaintiff must allege and ultimately prove that he or she is a qualified individual with a disability and was excluded from participation in or denied the benefits of the services, programs, or activities of the governmental entity defendant (or otherwise discriminated against by the governmental entity defendant) by reason of his or her disability or disabilities.

Compensatory damages are available to a prevailing plaintiff on a claim under Title II of the ADA or Section 504 of the Rehabilitation Act upon proof that the defendant was deliberately indifferent to the plaintiff’s rights under the ADA or that the defendant engaged in intentional discrimination.

The United States Court of Appeals for the Eleventh Circuit most recently described the deliberate indifference standard to require the plaintiff to establish that ineffective communication occurred with the defendant’s knowledge that ineffective communication was substantially likely to occur because of the plaintiff’s disability. Both economic and non-economic compensatory damages are available to a prevailing plaintiff. In website accessibility cases, plaintiffs often seek non-economic, compensatory damages for isolation, stigma, segregation, rejection, shame, humiliation, emotional suffering, pain, and anguish.

Declaratory and injunctive relief are also both available to a prevailing plaintiff. However, most of the website accessibility cases filed against governmental entities in Florida have been attorney’s fee-driven. A plaintiff who prevails on a claim under Title II of the ADA is entitled to an award of reasonable attorney’s fees, costs, and expenses. It is also worth noting that the DOJ may itself bring an enforcement action under Title II of the ADA. Finally, it is important to note that settlement with an individual claimant will not necessarily preclude subsequent lawsuits involving the accessibility of a website, if said suits identify different barriers to accessibility or seek additional relief.

Given the proliferation of lawsuits under Title II of the ADA regarding website accessibility, all governmental entities would be well-served to conduct an immediate, comprehensive review of their websites to assess accessibility. In the absence of current regulations from DOJ, it would be reasonable to utilize the WCAG 2.1 AA standards as a benchmark for such assessment. There are certain software tools available on the market to assist in such an audit, but bear in mind that those tools have certain inherent limitations and at some stage, human auditing of the website will be required. Consideration should be given to whether the entity possesses the necessary resources to properly perform such an audit or whether an expert consultant should be retained for that purpose.

Should such review conclude that the entity’s website is not fully accessible to the disabled, it will be necessary to formulate a plan and reasonable timetable to make the website accessible. This plan may well extend over several years and include the necessity to hire additional staff (webmaster), retain consultants and assess the type and amount of information published on the website. At a minimum, as a preliminary step, entities should ensure that an accessibility statement is placed prominently on their websites, publicly identify an ADA coordinator and offer the disabled an avenue to secure the information sought, in an accessible format. We would recommend that entities consult with counsel regarding any more specific legal questions. These precautions alone will certainly not preclude an ADA suit, but will put the entity in a better position to respond to such suit, if targeted.