Primary Agent - May 2022

DON'S DISCUSSION

DON'S DISCUSSION IA&B Legal & Corporate Affairs Director Don Bankus

Are you a member with a question?

Contact Don to find the answer at 800-998-9644, ext. 603 or DonB@IABforME.com.

QUESTION: Does the Americans with Disabilities Act apply to agency websites?

ANSWER: Several members recently reported receiving “demand letters” from an attorney claiming their agency’s website isn’t “ADA compliant.” In the letters, the attorney threatens litigation on behalf of his client unless the agency (a) makes the website ADA compliant and (b) pays the attorney “reasonable attorneys’ fees and costs.” So does the Americans with Disabilities Act (ADA) apply to agency websites?

The issues of whether a website needs to be “ADA complaint” and/or what would constitute an “ADA compliant” website are not settled. Federal courts continue to evaluate and adjudicate ADA website compliance lawsuits on a case-by-case basis, with varying outcomes. In addition to lack of clarity in the courts, no federal governing or regulatory body has provided express and enforceable guidelines, rules, or regulations regarding what constitutes an “ADA compliant” website.

THE ADA The ADA was initially drafted in 1986, a time which predates our perception and use of the modern internet, with

one of the ADA’s primary purposes being to eliminate impediments which keep disabled individuals from utilizing and enjoying businesses.

This includes private entities such as insurance agencies, which are open to the public and provide goods and services to the public. Since the ADA’s ultimate enactment in 1990, society has undergone sea changes.

With the integration and necessary daily utilization of computers, tablets, and smartphones, individuals now shop, learn, interact socially and professionally, and get their entertainment via the internet as much as, if not more than, they do face-to-face. It’s with this overarching societal change in mind that the concept of website ADA compliance was conceived and is evolving.

ACCESSIBILITY GUIDELINES So how can you make your website “ADA compliant” if there are no definitive court opinions or guidelines to follow or comply with? While the U.S. Department of Justice (DOJ), which oversees enforcement of the ADA, was expected to establish rules in 2010 regarding how to develop an “ADA IABforME.com |

compliant” website, it never did so, nor is it expected to do so in the foreseeable future. Presently, the World Wide Web Consortium’s Web Content Accessibility Guidelines version 2.1 (WCAG 2.1) are the generally accepted principles. While the WCAG 2.1 guidelines aren’t official government rules, they have unofficially been adopted and are favored by the DOJ, the federal courts, and ADA accessibility advocates.

PRACTICAL STEPS TO CONSIDER Whether or not you’ve been the recipient of a pre-litigation “demand letter” (or something akin thereto) or have been named as a defendant in an ADA website lawsuit, it may be pragmatic to add/incorporate an “accessibility tool” into your website as a proactive measure and risk management tool. Doing so could act as a deterrent to future letters or litigation, and it may assist with the resolution of any currently existing matter.

In addition, if you’ve been the recipient of such a “demand letter” or a notice of a complaint Continued on page 8 3