As of yet, there is no definitive answer to this question, but the legal trends are leaning towards “yes.” The “yes” answer is for any and all San Diego businesses big or small if your website is used to “drive traffic” to a physical location. There is a federal law called the Americans With Disabilities Act (ADA) that outlaws discrimination on the basis of disability in “places of public accommodation.” See 42 U.S.C. § 12181(7). The general question that the courts have been struggling with is whether a website is a “place” of public accommodation. The general rule that is now emerging is this: The ADA requires your website to be accessible to the blind if

  • You have a physical location and
  • You use your website to “drive traffic” to your physical location

Examples from the case law of “driving traffic” include having weekly sales fliers and having online coupons available for printing for use in your physical brick and mortar stores. There are no cases yet that provide a clear definition of “driving traffic.” If your website is merely “informational,” there is a legitimate question about whether that is “driving traffic” to a physical location (even if you include an address of your office). Likewise, a similar question is raised if your business is more service-oriented. That is, if your physical location is not particularly important for triggering sales, does your website have to be ADA compliant?

Even though the law is in flux, under the current legal environment, the wiser course is to begin the process of making your website ADA compliant. An experienced San Diego corporate attorney can help. If done prudently and persistently, changing your website can be done cost-effectively. This will avoid lawsuits over accessibility and, thus, will save huge sums of money. Litigation is expensive; potential judgments are expensive. Moreover, ADA compliance can be touted by your marketing department. Certain consumer demographics are politically and socially driven when making purchasing choices. Some might make ADA website compliance the basis of choosing your business over another.

Further, as more and more websites are becoming ADA compliant, the cost of embedding the necessary software is decreasing. Essentially what is needed is software coding in your website that allows an audio description to be used with certain reading software. A visually-impaired person will install reading software on his/her computer that translates the text and visual images into an audio description. However, the website must have the proper coding for the reading software to function. A few years ago, for large websites, the cost of a full website conversion has been placed at about $50,000. However, as noted, costs have come down and, if done as part of routine maintenance and upgrading, ADA compliance can be managed at a much lower cost.

A few other steps should be taken including:

  • Audit your website: Consider whether every aspect of your website needs the coding
  • Routine testing: Quarterly testing should be done particularly if your website is constantly uploading text and images; various inexpensive online software is available for testing purposes
  • Coordination: If the marketing department handles your website, make sure marketing is coordinating with legal and with tech to keep the website ADA compliant
  • Use the Web Content Accessibility Guidelines: Many courts have referenced these guidelines for determining if, when, and to what extent websites should be accessible; keep abreast of the changing Guidelines; the Guidelines have recently been updated to WCAG 2.0

Contact San Diego Corporate Law

For more information, call Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard focuses his practice on business law, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard can be reached at (858) 483-9200 or via email. Like us on Facebook.

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