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Around the country, a growing consensus among judges has created new laws that hold that the federal Americans with Disabilities Act (“ADA”) requires that many businesses must make their websites accessible to the blind and others with disabilities. In general, the ADA applies to “places” of “public accommodation” and discrimination based on a disability is prohibited in such places. See information page here. When the ADA was enacted, there was no internet as it exists now and, as such, the statute did not address — and still does not address — whether the internet is a “place of public accommodation.” Increasingly, the courts are taking a hybrid approach, holding that
- If a business has a physical location — like a brick and mortar store location — and
- If a business uses its website to attract consumers to the physical location(s), then
- The website is sufficiently “wrapped up with” the physical location that the requirements of the ADA will apply
This is the so-called hybrid approach since the courts continue to agree that, without more, websites are not “places of public accommodation” since they have no physical existence. This means that the ADA does not and will not apply to online retail platforms like Ebay and others.
The legal and practical concerns for San Diego businesses are these:
- The ADA applies to all businesses — big and small — that serve the public on a regular and customary basis
- Costs of making your website ADA compliant can be many thousands of dollars
- Keeping your website ADA compliant is an ongoing obligation and is also costly
- Costs associated with litigation if your business gets sued can be many hundreds of thousands of dollars
For these reasons, your San Diego business needs an action plan and it is a plan that should start sooner, rather than later. Working diligently without undue time pressure can help keep costs within the range of reasonable. An experienced San Diego corporate attorney can help. Here is the action plan in brief.
First, if possible, build ADA accessibility into your website from the beginning. Making your website ADA compliant is a technical problem. It involves using one of several programs that will translate visual images into text and/or audio. There are several programs that can be used and embedded. Designing the website from the start with this embedded programming is cost-efficient. Having to go back and re-design can be cost prohibitive. You will need experts to set this up and keep the programming updated.
Second, train your website personnel on keeping your website ADA compliant. Like every other aspect of computer systems, there must be continual maintenance. Often, the marketing department is assigned the task of running the company’s website. However, as content is uploaded, it must be uploaded in the proper manner so that your website remains ADA compliant. Training is essential.
Third, as part of the maintenance, run periodic and regular testing on your website to ensure that the programming is working. These audit reports can be very important in avoiding litigation costs if your business gets sued.
Fourth, plan for possible litigation by keeping really good records of what your business has done and what it does to ensure ADA compliance. As examples, makes sure the board or senior management creates and approved a company policy that requires the website to be ADA compliant, get documents and reports from your website design team, when you do an audit, make sure a solid report is generated, etc.
Contact San Diego Corporate Law Today
For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard has been named “Best of the Bar” for four years running by the San Diego Business Journal. Mr. Leonard provides a full panoply of legal services for businesses including formation of corporate entities of all types. Like us on Facebook.