Retailer Websites and the Americans With Disabilities Act

The American Booksellers Association is among many national groups working with their legal counsel to alert its members of an emerging legal risk related to their online retail websites and compliance with emerging requirements under the Americans With Disabilities Act (ADA).

Background: The Americans With Disabilities Act and Retail Websites

The ADA was passed in 1990 as the nation’s first comprehensive civil rights law addressing the needs of people with disabilities and prohibiting discrimination in employment, public services, public accommodations, and telecommunications. The law came into effect just as the first Internet service providers were beginning.

Twenty-six years later, a debate is emerging about whether the ADA should apply to online retail: Is a website a “retail establishment” to which the ADA should apply? The U.S. Department of Justice (DOJ), advocacy groups, and at least one court have answered “yes.”

In April 2015, edX Inc., a provider of online classes, reached a settlement with the DOJ over the alleged inaccessibility of its website. The agreement required edX to make its website fully accessible within 18 months of the date the settlement was reached. The website was required to contain “accurate captioning for the deaf, oral navigation signals for the blind, and programming changes so those with dexterity disabilities can navigate content without struggling with a hand-operated mouse.” Those requirements all closely mirror the components of “Level AA” of the Web Content Accessibility Guidelines (WCAG) v. 2.0, issued by the World Wide Web Consortium’s (W3C) Website Accessibility Initiative.

Since then, a plaintiff in a California case was awarded damages plus attorney’s fees and costs because a retailer’s (Colorado Bag’n Baggage) website “denied full and equal enjoyment of the goods, services, privileges, and accommodations offered to defendant [via its website] because of his disability.” The plaintiff in that case was represented by the Newport Trial Group, a firm targeting retailers with threatened class actions over website accessibility. A Pittsburgh-based firm, Carlson Lynch Sweet & Kilpea, also has been targeting retailers. Both firms seek settlement agreements calling for compliance with Level AA of the WCAG v. 2.0., as well as payment of attorney fees and damages.

Action Steps for ABA Members’ Online Stores

The DOJ’s edX enforcement action, the California court decision, and threatened lawsuits by a number of plaintiffs’ law firms suggest that ABA members should seek to reduce the risk that they become the next target. The American Booksellers Association, in fact, has been contacted by two member stores that have received a demand letter from attorneys, asserting that the store’s website was not accessible to their visually impaired customers and, therefore, is not compliant with the ADA.

While the government has yet to promulgate regulations specifying which requirements should apply to online retail, the prevailing trend is to move toward Level AA of the WCAG v. 2.0, which is available here.

Because many members utilize ABA’s IndieCommerce service, the association has evaluated the framework in the WCAG 2.0 guidelines as it applies to the IndieCommerce system. Based on this information, IndieCommerce already complies with many components of the WCAG 2.0 guidelines and has already made additional changes to the platform that are reflected in IndieCommerce websites. These include enabling book cover images that appear in the Ingram catalog and “Staff Picks” images to contain “alternate text” that describes each book cover image. This alternate text can be read by web browsers designed for visually impaired users. These changes were made to all IndieCommerce sites several weeks ago.

Meanwhile, many aspects of member-stores’ websites (including those using IndieCommerce) may benefit from additional changes that may only be made at the store level. ABA strongly encourages members to review their store website for ways to comply with Level AA of the WCAG 2.0 guidelines, including:

• Alternate Image Text: Non-decorative images must contain alternative text so that screen readers can identify them. This means any image that contains information not provided as plain text elsewhere on the same page, or any image that links to other content must have alternative text entered.
   
• Embedding Video: Embedded videos must have closed-captioning for the deaf and audio description of what is happening for the blind.

  Additionally, members may consider including a statement on their websites that offers a contact point for assistance with shopping on the website, such as “If you have difficulty accessing content on this website, please contact us at ____ and we will strive to assist you in accessing our website.”

ABA will continue to monitor the situation closely as additional information becomes available. The BookWeb page “Website Compliance With the Americans With Disabilities Act” will be updated with suggested changes as ABA determines what changes to make and how to make them. All ABA members are encouraged to review the page from time to time.

Booksellers with questions and concerns, as well as those who receive a demand letter, can contact IndieCommerce at [email protected].