Mark SablemanMark Sableman

While websites provide a vital connection between your client’s message and the public, many websites may need to be accessible to persons with disabilities. The application of the federal Americans with Disabilities Act to websites is still being worked out by regulators and courts, but smart website operators are already putting accessibility on their website requirement checklists.

The ADA applies not only to governmental operations but also “places of public accommodation,” which may include many websites that serve the public.  And once a website is subject to the ADA, it needs to take care to ensure that all of its content is accessible.

Consider the Harvard University site. As part of its outreach, Harvard posted — and made freely available to the public — a vast array of course and other educational and general interest material.  Millions of people from around the world have accessed this content.

Harvard, however, as a private school, is subject to the ADA, and the ADA prohibits discrimination on the basis of disability, with respect to “full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations.”  (Harvard was also subject to similar requirements in the Rehabilitation Act, which applies to recipients of federal funds)

Harvard argued that the mere voluntary posting of free videos and educational materials, as a benefit to the public, should not lead to a finding of discrimination.  But a federal magistrate, in a report in February, concluded that by posting videos, accessible only to those who could hear, Harvard had violated the ADA and discriminated against deaf and hard-of-hearing persons.

Of course, blind and deaf persons will never be able to see or hear videos, and the ADA does not require that they do so.  It simply requires a reasonable accommodation of their disabilities, meaning that entities covered by ADA must ensure that disabled individuals are not excluded, denied services, segregated, or otherwise treated differently because of their disability.  Typically, this requires providing “auxiliary aids and services” that ensure effective communications to persons with disabilities.

The ADA's reasonable accommodation requirement is limited in that it does not require sellers of goods to create new accessible or special goods for disabled persons, like braille books, audio versions of books, and close-captioned video tapes.  Harvard argued that this exception should protect it from having to add closed-captioning to its online videos.

The magistrate, however, construed that exception narrowly, to apply only to the sale of goods, and not the provision of services, such as the educational videos on Harvard’s website.  Thus, the magistrate concluded that Harvard had an ADA obligation to add closed captioning to its online videos as a reasonable accommodation to the deaf and hard-of-hearing persons on whose behalf the suit was brought.

The Harvard case is still in a preliminary stage. The magistrate’s recommendation will be reviewed by a district judge, and the judge’s decision will be subject to appeal.  Moreover, Harvard, as a private school, is clearly a place of public accommodation, and the question remains open as to what private websites will fall under that term, and thus the ADA’s coverage. 

The decision, however, helps focus everyone, including the PR community, on a likely increasing focus on website accessibility. Particularly if the ADA’s “reasonable accommodation” obligation is higher for services offered on a website than for goods offered for sale, news and information businesses need to take heed.

The ADA covers a broad range of disabilities including blindness, deafness, color blindness, repetitive stress injury, tremors, and mental illnesses. Website content may often be made accessible to persons with disabilities, and compliant with the ADA, by adding textual material to supplement multimedia content, and by using other “assistive technologies,” including website coding that allows alternative means of navigation.

In several early decisions, courts have refused to dismiss ADA claims concerning websites. In one case, Netflix entered into a consent judgment, agreeing to index and increase its closed-captioned content, after a court held that Netflix’s streaming-movie service was covered by ADA, and refused to wait for the FCC to formulate its broadcasting accessibility rules. Spurred by these cases, some law firms are threatening class action lawsuits against operators of public websites that they believe qualify as “public accommodations.”

The Department of Justice is working on regulations setting specific accessibility standards for websites, but its rule-making process, which began in 2010, is moving slowly; regulations on the public accommodation title aren’t expected until 2018. In the meantime, many website designers are using the World Wide Web Consortium’s accessibility guidelines as the de facto legal standard.

For now, PR firms that use websites to get messages out on behalf of their clients should at least consider website accessibility. Begin now — before you receive any legal demands — to have your website designer prepare your websites so that the services offered are also available to the disabled.

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Mark Sableman is a Partner at Thompson Coburn LLP.