What happens if your website isn’t ADA compliant?
Well the first layer to this question is, does the Americans with Disabilities Act even apply
to websites?
And when the ADA was signed into a law it didn’t contemplate modern digital technology. And there has been- there have been no regulations and no amendments to the law and no subsequent laws that mandate digital accessibility.
So we’re left with interpretations and some of these interpretations are that the ADA does apply.
But there’s- and sometimes it’s- it’s been held that the ADA does not apply and how it applies and when it applies varies depending on what court you’re in.
But let’s go ahead and assume that the ADA
does apply to websites.
The first very remote possibility is the DOJ could take an enforcement action against the owner / operator of the website and this has happened in a handful of instances where the DOJ has taken a private enforcement action against a private entity.
But relatively this is extremely rare, very unlikely to happen unless you’re a large entity.
And you can- for most entities you can rule this out as a possibility – it’s just highly unlikely.
What is much more likely is that a plaintiffs’ law firm initiates litigation – they either send you a demand letter or a complaint is filed in state or federal court.
This is less likely now than it has been previously because in New York and California there have been adverse rulings to plaintiffs.
And so we will see website accessibility litigation decrease in 2023.
But this is the most- and a plaintiff initiating litigation against you is the most likely adverse event that would be that would happen if your website was found to not be meaningfully accessible.
What is of note is that it is extremely likely that regulation and or law will be forthcoming. And I would say by 2024 it’s- it’s likely that we will see some type of litigation under Title III of the Americans with Disabilities Act for modern digital technology.
And what is of note is that a law is a creation of Congress or state legislature.
So we might have a federal law from Congress, we might have a state law from the state legislature.
A regulation- regulation is rules from enforcement agencies that govern on how laws are to be
enforced.
So there’s the same practical effect; they’re both mandatory you need to comply with both of them.
But regulations can usually come about quicker because the legislative process that Congress has to employ is not involved with the issuance of regulation.
Now there is a process to regulation but it’s just not nearly as involved and it can- and regulation it from a federal agency is granted from law.
So the Department of Justice regulates and enforces Title II and Title III of the ADA and that power has come from Congress.
So what I think will happen is that we will have regulation and with this regulation it will set out exactly what can happen if your website is not ADA compliant.
