By: Laura Farley, Virginia REALTORS^® General Counsel

Over the past few years, we have seen an increasing number of plaintiffs sending demand letters to businesses with websites, stating that the website is inaccessible to persons with disabilities and so in violation of Title III of the Americans with Disabilities Act (“ADA”). The number of actual legal cases has more than tripled since 2017, and federal courts have interpreted the ADA as requiring businesses that are “public accommodations” to have websites that are accessible to those with disabilities.

Unfortunately for businesses, while the awareness and cases have increased, neither the federal nor state government has conclusively established specific standards or guidelines for businesses to follow to ensure they are complying with the ADA or state disability laws. This year, the Virginia General Assembly did pass a law that included some compliance guidelines for financial institutions to follow. However, the Governor vetoed the law because the administration did not agree with some other provisions included in the bill.

The guidelines the law established, and which the Department of Justice and some federal and state courts have pointed to, are the Web Content Accessibility Guidelines version 2.0, Level Double A (“WCAG”). This set of guidelines was created by an international standards organization called the World Wide Web Consortium, also known as W3C. The guidelines include making sure the website works with popular screen readers, including tags for images, providing captioning for videos, and ensuring the website can be navigated with only a keyboard because some disabled persons cannot use a mouse.

Do an audit of your website’s accessibility. There are free online services to use, and paid vendors who do this. Finding out where you stand is the first step in deciding how to move forward. If you use a third-party website provider, talk to them about the standards and whether they have taken any steps to make your site accessible.

We do recommend that you get your website up to the guidelines, particularly if you are already in the process of redesigning your website. The federal court in the Western District of Virginia held in a 2018 case that if you get served with a website accessibility lawsuit and you upgrade your website to comply with WCAG 2.0 Level AA standards before the case is heard, the court will grant a motion to dismiss.[1]

The Virginia Department of Education has a website that contains Accessibility Tools and Resources, where you can get find applicable guidance documents and several testing and evaluation tools.

If you receive a demand letter regarding your website’s accessibility, contact an attorney immediately.

[1] Carroll v. New People’s Bank, Inc., 2018 WL 1659482, *4 (W.D.VA, 4/5/18).