I was recently asked by a client about ensuring that their website is compliant with the American with Disabilities Act (ADA). That’s right, while most employers are aware the ADA requires public places to be accessible to those with disabilities (i.e., parking spaces, ramps, curbs and bathrooms), few are aware that this obligation likely extends to the company website.

Wait, the ADA applies to websites?!

Yes. While the ADA does not explicitly mention the internet, the U.S. Department of Justice (DOJ) — the primary enforcer of the ADA — has taken the position that ADA-accessibility requirements extend to company websites and “apps.” As part of its aggressive enforcement efforts, the DOJ has required a wide variety of companies to make both their websites and their mobile “apps” ADA-accessible. The emerging consensus is that if your company sells goods or services through its website, then there is likely an obligation to comply with the ADA.

What is ADA-accessibility for websites and apps?

While this question requires an answer that far exceeds the word count of this article, the example of screen readers for the blind can be illustrative. For blind individuals, the internet can be navigated using “screen reader” software that reads text on a webpage, converting it to a format that blind users can understand, such as audio or braille. These screen readers can also identify links and graphics to help with site navigation using only a keyboard. While the ADA does not require the provision of screen readers to members of the public who are blind, it would require the website to use code that is compatible with screen readers. Most websites lack such a code.

How big of a deal is ADA-accessibility for websites and apps?

Companies may find themselves asking whether it is really necessary to undergo efforts to make their websites ADA-accessible and wondering “what is the worst that could happen?” The short answer is that plaintiffs and the federal government have pushed this issue to the forefront and the DOJ is empowered to level substantial civil penalties for non-compliance. Of course, there are also significant PR concerns.

As far as financial damages, the DOJ can require payment of compensation to the complaining party and assess civil penalties up to $75,000 for a first violation, and up to $150,000 for a subsequent violation. Additionally, the DOJ typically mandates settlement terms which require substantial time and effort by company personnel such as: ongoing testing and reporting to DOJ; retention of an independent ADA-accessibility consultant; adoption of an ADA-accessibility policy; and annual training of website content personnel.

Moreover, putting aside legal concerns, most businesses wanting to maximize their own sales will want their websites accessible to all, including those with vision and hearing difficulties. Ensuring ADA-accessibility also protects companies against negative publicity or being singled out as unfriendly to the disabled.

Now what?

If your company has a website that sells goods or services to the public, now is the time to evaluate your website (and most likely talk to a specialist). Companies should start this process by asking themselves three basic questions:

1. Is your website accessibility/navigation/use limited in any way?

2. Does your website sell goods or services to the public?

3. Does your website use screen reader technology without the necessary code?

If the answer to any of these questions is “yes,” then it is time to take action. As many companies have learned the hard way, ADA-accessibility for websites and apps is not a fad but an inevitable reality that can expose companies to substantial civil penalties and unwanted negative publicity.

ADAM BARTROM is a partner the Labor and Employment Department of Barnes & Thornburg LLP’s Fort Wayne office. He can be reached at adam.bartrom@btlaw.com or 260-425-4629.

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