The ADA, or the Americans with Disabilities Act, was a law signed by the late President George H. W. Bush in 1990 to protect people with disabilities from discrimination in all areas of public life. Its purpose is to provide people with disabilities the same rights and opportunities as everyone else in employment, transportation, public accommodations, telecommunications, and state and local government services. The ADA grants civil rights protections to people with disabilities similar to those given to people based on race, color, sex, national origin, age, and religion.
The ADA was later amended in 2008 by the ADAAA, or the Americans with Disabilities Act Amendment Act, and became effective starting January 1, 2009. The amendments include important changes in the definition of “disability” which applies to all the titles of the ADA.
The titles of the ADA are as follows:
- Title I (Employment) - Equal employment opportunity for individuals with disabilities
- Title II (State and Local Government) – Nondiscrimination on the basis of disability in state and local government services
- Title III (Public Accommodations) – Nondiscrimination on the basis of disability by public accommodations and in commercial facilities
- Title IV (Telecommunications)
- Title V (Miscellaneous Provisions)
Businesses and the ADA
The ADA covers many different aspects of accessibility for people with disabilities, but the part that influences how businesses interact with their customers is found in “Title III.” It covers schools, transportation, and all places considered as a public accommodation.
ADA Title III prohibits places of public accommodation to discriminate against people with disabilities. It sets the minimum standards for accessibility for the renovation and construction of new commercial establishments and public accommodations. Existing facilities are required to remove barriers and obstructions, provided it is not too expensive and easy to do so. It instructs businesses to make “reasonable modifications” from their standard way of service when serving people with disabilities, which includes taking the initiative to communicate properly with customers that have a vision, speaking, and hearing disabilities.
Who is protected by the ADA?
By the ADA definition, you have a disability if you have a physical or mental impairment that substantially limits a major life activity. A substantial impairment is something that seriously limits activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning, and working. To be protected by the ADA, you must have an impairment, a history of an impairment, or be perceived with an impairment by other people.
Who needs to comply with the ADA?
Contrary to popular belief, the ADA not only applies to large corporations but to smaller businesses as well. The ADA applies to all organizations and business that fit under one or more of the following criteria:
- All local and state government agencies
- All businesses that rely on the general public or for their benefit
- Privately run companies that currently have 15 or more employees
- Nonprofit and charitable organizations that either have 15 or more employees or which operate for the benefit of the general public
This means that the ADA affects entertainment places such as theaters and concert halls, restaurants, retail stores, government offices, employment agencies, small and medium businesses of all types, etc.
How does the ADA affect websites?
When the act was initially legislated, the internet was far from what it is today. The 1990 bill was not able to predict that the internet will be used to this extent, and eventually become a necessity. There were instances that websites were not considered as public places of accommodation.
But over the past years, the internet evolved into a necessary medium for interactions between businesses and customers. By 2017, the ADA began to cover the online world by requiring website accessibility for people with disabilities. Disability rights activists, legal scholars, and court rulings had a consensus that people with disabilities must have equal access to websites, internet portals, and online stores.
Lawsuits against web accessibility
Over recent years, the number of complaints and lawsuits related to ADA Title III has grown exponentially. In 2017, there were 7,663 ADA Title III federal lawsuits filed. That number grew to over 10,163 cases in the following year. But that does not yet include lawyers’ that were filed against businesses with non-ADA compliant websites, which could have reached over 100,000 in 2019 as experts have approximated.
This trend is a result of many factors. As people become more and more dependent on the internet, web accessibility becomes more important. Many of our daily activities now involve the internet, such as checking the weather, shopping for clothes, ordering food, setting up a doctor’s appointment, and booking accommodation.
What’s most notable, however, is the rise of eCommerce. Online shopping now plays a big role in the businesses’ interaction with customers, taking up more than 15% of all retail spending.
Aside from the volume of people using the internet, the demographics also contribute to the trend. The millennials and Generation Z, who comprise the majority of people who use the internet, are less likely to remain quiet regarding discrimination and inaccessibility. These groups of people are more aware and proactive about their rights.
It can also be inferred that the increased awareness of people regarding the ADA encourages them to file a case against businesses with non-ADA compliant websites. People with disabilities now know that they have legal recourse when they cannot successfully do things online. Moreover, the current US legal environment heavily favors the plaintiff for suing businesses under ADA Title III. The ADA requires the defendant to shoulder the plaintiff’s legal fees, meaning that a person with a disability does not have anything to lose upon filing a case.
The Impact of ADA on SMBs
In contrast to what mainstream media reports, large corporations are not the ones greatly affected by ADA lawsuits. Small and medium businesses take the majority of lawsuit cases regarding web accessibility. These lawsuits can greatly impact their operations, or worse, destroy them completely, as the average settlement agreement amounts to $35,000.
It is not ideal to not comply with the ADA anymore. Non-ADA compliant websites are now a liability. With over one billion people with disabilities, their share of the market cannot be ignored. In 2018, their market was valued at over $21 billion, which was greater than Africa-American and Hispanic markets combined.
Compliance with the ADA protects your business from lawsuits regarding discrimination. Aside from avoiding the costs of settling such lawsuits, you are also able to prevent your business from having a reputation of discriminating against people with disabilities, which can drive potential customers away. ADA compliance gives your business an edge over competitors and appeals to people with disabilities. Furthermore, you will have the feeling of upholding the social fabric.
ADA’s web accessibility standards
What’s difficult about compliance with the ADA Title III is that it does not specify how you can make your website accessible. There are no official guidelines on how a website becomes accessible. But as Assistant Attorney General Stephen E. Boyd wrote to Congress: “the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements. Absent the adoption of specific technical requirements for websites through rulemaking, and public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
The closest thing we currently have as a standard for website accessibility is the Web Content Accessibility Guidelines (WCAG) 2.0. Although it is not codified into law, it is the best measure of web accessibility when it comes to federal law. It is safe to say for now that compliance with the WCAG 2.0 will help you avoid lawsuits related to ADA Title III.