Are there any court cases on web accessibility and the obligations of businesses under Sections 504, 508 or ADA?

To date, only a few cases specifically related to web accessibility have gone to court, but it is only a matter of time before more follow. Although it is always hard to know with certainty what the results might be in a particular court case, it is well established that when a court is asked to decide a new issue, for example, obligations to provide accessible websites, it will look to earlier cases that have raised similar issues.

Section 504 and Section 508 of the Rehabilitation Act of 1973

Section 504 requires any entity receiving federal financial assistance to ensure program accessibility, while Section 508 guarantees access to electronic and information technology procured by Federal agencies.

A number of states have now incorporated all or part of the Section 508 standards into state legislation, meaning that many state agencies and state-funded entities now fall under the Section 508 standards and requirements.

Web-based information is often integral to programs of federally (or state) funded entities - and may often be the programs themselves.

Commercial web sites are not covered directly by Sections 504 or 508, unless they are providing programs or services to covered entities. A private entity wishing to provide such services would be more likely to be considered for selection as a provider if it can show that its services are in compliance with Sections 504 or 508.

Americans with Disabilities Act

Two court cases have received prominence in the past few years, with very different results, showing how, over time, the Internet has become more mainstream and that commercial websites could be considered to be "public spaces", which would be covered under Title III of the ADA.

In an October 2002 court ruling, Robert Gumson, who is blind, lost a lawsuit he filed against Southwest.com to compel the airline to redesign their website, which he considered inaccessible. Gumson acknowledged it was possible for him to buy tickets on Southwest's website, but he argued it was "extremely difficult" due to his disability.

Gumson, who uses a screen reader on his computer to translate website text into words using a voice synthesizer, asked the judge to order Southwest to provide additional text that could serve as an alternative to the graphics used for the website's navigation buttons (screen readers can't read graphic images) and also to redesign the site's navigation bar to make it easier to understand.

The judge ruled against Gumson and in favor of Southwest Airlines based on what the judge described as ambiguity in existing ADA criteria for "public spaces" and the question of whether that criteria should include the Internet.

In September of 2006, a judge ruled that a lawsuit brought by National Federation of the Blind (NFB) against Target could proceed. The court found that to the extent that the plaintiffs alleged that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs have a claim. This only meant that the court case could proceed and no legal judgment was passed.

The case was settled out of court on August 27, 2008. Highlights of the settlement include:

• Target does not admit liability that target.com is in any way inaccessible or has violated the Americans with Disability Act.
• Target will pay up to a total of $6 million in damages to qualified settlement class members over a 3 year period.
• Target will ensure that the target.com website meets the Target Assistive Technology Guidelines and that blind guests using screen-reader software may acquire the same information and engage in the same transactions as are available to sighted guests with substantially equivalent ease of use.
• National Federation of the Blind will engage in ongoing monitoring of target.com for the duration of the agreement, to ensure accessibility of target.com.

The full settlement is available at www.nfbtargetlawsuit.com.

Similar lawsuits have been filed against AOL, American Airlines, Barnes and Noble and Claire Stores to name just a few. Most of these cases were settled out of court, with no legal judgment having been passed.

General

In the case of web accessibility, a court will look to the legal standards established and defenses allowed under §504 and the ADA for similar obligations, such as the duty to provide auxiliary aids (for example, sign language interpreters, readers, or hardware or software needed by people with disabilities to access information technology).

The legal obligation in the case of websites is to provide equal access to the information contained on the websites and to "effectively communicate" that information to the user. However, like other duties under §504 and ADA, it would seem likely that a commercial entity will not be required to meet this obligation if the entity could successfully argue that doing so results in a fundamental alteration to the nature of the business and/or creates an "undue burden." "Undue burden" has been interpreted in many court decisions as actions that require substantial effort or cost.

Businesses found to be discriminating against individuals with disabilities because the information contained or services offered on their websites was inaccessible under the ADA could be required to pay for redesigning websites as well as incurring the costs of "effectively communicating" website content to individuals.

It is much less expensive to design and implement an accessible website from the beginning than to retool it later. Designing accessible websites can be thought of as an insurance policy that protects against future costs incurred by not adequately meeting the needs of customers, employees and the community.