Is your organization a “public accommodation” under Title III of the Americans with Disabilities Act (ADA)? Does your organization have a website? If so, can that website be navigated with a keyboard (instead of a mouse) and with screen reader software? Is the audio content on the website captioned?
At this point I know you are thinking, “What does this have to do with human resources or employment law?” As an HR professional, you are the ADA subject matter expert for your organization. This post will help you showcase that expertise and be a business partner with your senior leadership to identify and remediate potential risk to the organization. Translation: You’ll be a hero.
In early June 2017, a federal court in Miami, Florida, held the first trial in the country on the issue of website accessibility under the ADA. The plaintiff, Juan Carlos Gil, who is legally blind and has cerebral palsy, alleged that he was not able to use Winn-Dixie’s website with his screen reader software. (A screen reader is a computer program that reads aloud the information on a website to the user, who is navigating with a keyboard.) Specifically, Gil testified that he wanted to be able to use the website’s store locator, store coupons, and pharmacy functions.
On June 12, 2017, Judge Robert Scola issued his verdict, ruling that Winn-Dixie violated the ADA, and entered a three-year injunction requiring Winn-Dixie to modify its website. The judge also awarded attorney fees and costs to Gil. (ADA Title III does not provide for individual monetary damages to a plaintiff.) In the order, Judge Scola held that Winn Dixie’s website was “heavily integrated with [its] store locations and operates as a gateway to the physical store locations” and that the “services offered on [its] website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s reward card, and the ability to find store locations … are especially important for visually impaired individuals.”
Notably, Judge Scola’s order adopted the Web Content Accessibility Guidelines (WCAG) 2.0 as the standard for Winn-Dixie to meet in modifying its website. The WCAG 2.0 (adopted in 2008) are a set of technical guidelines for web developers and related personnel to create accessible websites for individuals with disabilities, including individuals with cognitive impairments, and individuals who are blind/ visually impaired or deaf/hard of hearing. The WCAG 2.0 was created by W3C, a private working group (whose sponsors and participants include IBM, HP, Adobe, Google, and Microsoft), not a government agency. Although not a formal government regulation, WCAG 2.0 is the standard that has been adopted for U.S. Government websites (effective January 18, 2018) and that has been used by the U.S. Department of Justice (DOJ) in consent decrees with private businesses concerning website accessibility.
Why does all this matter? First, if your organization’s website is not accessible to disabled users, some potential customers cannot use it. That translates to lost sales or business opportunities. Second, South Florida is a hotbed of ADA litigation, and website accessibility claims are on the rise. In fact, as of Fall 2016, Miami’s own, Scott R. Dinin, P.A., filed approximately 40 percent of the website accessibility lawsuits in the country.
So what do you do with the information in this post? Take it to your senior leadership team and then start looking at whether your on-line application system is accessible.