Does Every Website Need to Be ADA Compliant / Accessible in 2021?
I know you’re trying to find out whether you’re legally obligated to make your website accessible in the U.S., whether your website falls under the Americans with Disabilities Act (ADA) and my general answer is yes, all websites need to be accessible.
If your website is commercial in nature (it sells goods or services), then that yes turns into an emphatic yes.
Let’s briefly look at the 12 categories that the ADA considers to be places of public accommodation.
Since courts have overwhelmingly ruled that websites are considered places of public accommodation, under Title III of the ADA, accessibility is only mandatory for websites that affect interstate commerce and fit under 12 listed categories:
A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
B) a restaurant, bar, or other establishment serving food or drink;
C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;
D) an auditorium, convention center, lecture hall, or other place of public gathering;
E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
G) a terminal, depot, or other station used for specified public transportation;
H) a museum, library, gallery, or other place of public display or collection;
I) a park, zoo, amusement park, or other place of recreation;
J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
But it’s important to remember that, in a way, plaintiffs’ law firms are the ones calling the shots because they’re the ones deciding who to send demand letters to.
And, since you’re highly unlikely to get in a technical legal battle with clients, the practical result is if you have a website, it’s best to make it accessible.
Now, are some highly unlikely to ever receive an ADA Website Compliance demand letter or lawsuit?
If you write a gardening blog on Tumblr where you pontificate whether you’re planting daffodils in your backyard for 2020, there’s a 99.9999% chance you’re just not going to be special enough to merit the time and attention of a plaintiffs’ law firm.
But the more commercial in nature your website is, the more you become open season for serial web accessibility plaintiffs.
If your website is connected to a physical location, there’s a strong chance you’re in the web accessibility lawsuit pool.
If your website is only web-based, you can absolutely still be sued and even theoretically lose a case on the merits in court. Web-based businesses with no physical presence are increasingly being swept up in ADA compliance.
Although not all courts agree on this, plaintiffs’ law firms just pivot to courts that do. In effect, even companies without a brick-and-mortar location are completely vulnerable to web accessibility lawsuits.
You originally wondered whether your website needs to be ADA compliant, but the better question is how likely are you to receive a demand letter?
Again, if you have a physical location (e.g., restaurant, hotel, bank, gym, museum, etc.) done deal. You need to have an accessible web presence.
If your website consists of commercial activity; if you’re selling products or services or financial transactions are taking place on your website, then you better make sure your website is accessible.
From there, it’s a sliding scale of your risk.
For example, maybe you’re an independent contractor like an architect who has an informational website complete with blog and contact information.
This type of website would be far less likely to receive a demand letter than a bank but it’s not inconceivable that a plaintiffs’ law firm would send a demand letter.
The primary reason I say that every website needs to be accessible is because there is no definitive web accessibility law for private entities in the United States.
Instead, the legal standard is just a running ledger of what feels right based on the spirit of the ADA.
Plaintiffs’ law firms are running with the ambiguity and cobbling together claims of disability discrimination that appear legitimate — and not like a pure money grab — at first blush.
Of course, 98% of these lawsuits ultimately are just a money grab but it doesn’t matter in terms of how you, as a website owner, react.
You must make your website accessible because the law is being made up as we go.
Maybe, technically, your website isn’t a “place of public accommodation” (the ADA requires accessibility from places of public accommodation) but it’s a moot point because plaintiffs’ lawyers don’t mind sending you a demand letter to test the waters.
Once you receive that demand letter, it’s going to be more efficient for you to settle with them for several thousand less than it would cost you to have a defense attorney (very possibly an out of state attorney if you’re not in New York, California, or Florida) litigate the case.
By that time, it doesn’t matter whether you can reference a technically sound legal defense blog post online — you’ve lost.
Technically, you win in online message board law.
Practically, you empty $10,000+ out of your online piggy bank and transfer it over to that value destroying plaintiffs’ law firm that alleged you discriminate against persons with disabilities.
So, yes, I’d make my website accessible if I were you.
Beyond the legal requirements, accessibility is highly beneficial in that everyone can better engage with your website.
So what should you do now?
This will provide an excellent overview on the current landscape and give you a clear idea of how to best proceed in making your website accessible.
The primary two things you’ll need to do are:
- Audit your website
- Remediate your website
An audit identifies all of the accessibility issues found on your website.
Remediation is the fixing of all of the issues found in the audit to make your website accessible.
If you need help figuring out the technical standards for web accessibility, you can subscribe to Accessible.org and get my WCAG 2.0 AA and 2.1 AA guides for free.