Pub. 2 2019-2020 |Issue 1

13 T he Americans with Disabilities Act (the ADA) has generated litigation claims since it was enacted into law several years ago. In recent years, however, there has been a plethora of litigation claiming that company websites violate Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation” because the websites are not accessible to persons with disabilities. Traditionally, ADA claims were directed at brick-and-mortar, physical access barriers to dealership businesses. The more recent claims, however, assert that private company websites qualify as places of public accommodation, and websites with access barriers (such as compatible screen-reading software, for example) deny persons with disabilities the right of equal access. Litigation has also challenged accessibility of mobile applications. A number of plaintiffs’ firms typically file numerous suits against different companies alleging violations of Title III and seeking injunctive relief against the companies (that is, to make their websites ADA accessible), along with payment of attorneys’ fees under the statute. Such claims have been pursued against busi- nesses all around the country in varied industries, including car dealerships, retail stores, restaurants, and the like. The abun- dance of claims alleging ADA website compliance violations continues to clog judicial dockets and confound business- es that would be better served by more focused clarification from either Congress or the Department of Justice (DOJ) (which enforces the ADA) relative to website ac- cessibility compliance for private compa- nies. Title III of the ADA provides stan- dards required for the physical location of a business to lawfully accommodate persons with disabilities, but it does not provide guidance for internet web-based or mobile applications. And while there are neither statutes nor regulations that specify how businesses must comply, DOJ has consistently asserted that websites must be accessible to persons with dis- abilities, and businesses have flexibility in deciding how to ensure their accessibility compliance. DOJ has also stated that the absence of a specific regulation does not serve as a basis for noncompliance with statutory requirements. Different conclusions on these issues reached by federal and state courts throughout the nation have also contrib- uted to the challenges that businesses face in complying with the Title III require- ments. For example, judicial decisions are split on questions regarding whether cov- erage under Title III is limited to physical spaces or whether a company’s website requires a nexus to a physical location to fall within the scope of Title III protections. Dealership businesses may consider certain actions to make their websites more accessible. Courts and regulators generally have required businesses to improve accessibility of their websites to be consistent with the Web Content Accessibility Guidelines 2.0, Level AA requirements (WCAG 2.0) established by the World Wide Web Consortium. These guidelines are designed to make website content more accessible to persons with disabilities, including, without limitation, physical, speech, visual, hearing, learning, and other disabilities. WCAG 2.0 outlines several principles for website accessible design indicating that websites must be: perceivable (e.g., users must be able to perceive the information being presented); operable (e.g., users must be able to operate the interface); understandable (e.g., users must be able to understand the information and the operation of the user interface); and ro- bust (e.g., users must be able to access the content as technologies advance). Businesses might utilize these guidelines to help correct any existing web-based ac- cessibility barriers to ensure web content is accessible. An important aspect these guidelines impart for business compliance is to ensure that disabled persons can access the company’s goods, services, and benefits through the website of the business. Dealerships might also discuss web accessibility with their third-party website vendors and review website and mobile applications with their legal counsel, their insurers and their franchisors (particularly with respect to manufacturer sponsored or required websites). Consideration should also be given to development and implementation of a plan to update and improve accessibility recommendations. Additionally, dealerships might consider establishing website and mobile applica- tion content policies to provide for regular monitoring and remedial steps to ensure accessibility, along with proper dealership staff training. While there is not a “cook- ie-cutter” formula for website accessibility compliance, and while many website solutions might be costly for some dealer- ships, businesses should consult with their trusted web content advisors and other advisors to ensure website and mobile applications are accessible. 3 Julie A. Cardosi is Principal of the private firm, Law Office of Julie A. Cardosi, P.C., of Springfield, Illinois. She has practiced law for over 30 years and represents the business interests of franchised motor vehicle dealers throughout Illinois. Formerly in-house staff legal counsel for the Illinois Automobile Dealers Association, she concentrates her private practice in the areas of dealership mergers and acquisitions and other transfers of ownership, franchise law, commercial real estate transfers, state and federal regulatory compliance matters, and other areas impacting day-to-day dealership business operations. She has also served as former Illinois Assistant Attorney General and Deputy Chief of the Consumer Fraud Bureau of the Attorney General’s Office. The material discussed in this article is for general information only and is not intended as legal advice and should not be acted upon as such. Dealers should consult their own private legal counsel for application to their specific circumstances. For more information, Julie can be reached at jcardosi@autocounsel.com , or at 217-787-9782, ext. 1. Dealer Website ADA Compliance Issues By Julie A. Cardosi