Don's Discussion

IA&B Legal & Corporate Affairs Director Don Bankus Are you a member with a question? Contact Don to find the answer at 800-998-9644, ext. 603 or DonB@IABforME.com.

QUESTION:

Does the Americans with Disabilities Act apply to agency websites?

ANSWER:

Recently some agencies received “demand letters” from attorneys, claiming the agencies’ websites aren’t “ADA compliant.” In the letter, the attorneys threaten litigation on behalf of their client unless the agency (a) makes its website compliant and (b) pays “reasonable attorneys’ fees and costs.” But does the Americans with Disabilities Act (ADA) apply to agency websites?

While some may argue otherwise, the issue of website compliance with the ADA is not a wholly settled issue, nor is the issue as to what constitutes an “ADA compliant” website. Federal courts continue to evaluate and adjudicate ADA website compliance lawsuits on a case-by-case basis, and the outcomes of those cases vary from jurisdiction to jurisdiction. In addition, no governing or regulatory body has provided express and enforceable guidelines, rules, or regulations regarding what constitutes an “ADA compliant” website.

THE ADA

The ADA initially was drafted in 1986, a time which predates the modern internet. One of the ADA’s primary purposes was to eliminate impediments which keep disabled individuals from utilizing and enjoying businesses, including private entities such as insurance agencies, which are open to the public and provide goods and services to the public. Since the ADA’s ultimate enactment in 1990, society has undergone a sea change. With the integration of computers, tablets, and smartphones, individuals now shop, learn, interact socially and professionally, and get their entertainment via the internet as much as, if not more than, face-to-face. It’s with this overarching societal change in mind that the concept of website ADA compliance was conceived.

THE HEART OF THE MATTER: ACCESSIBILITY

How can you make your website “ADA compliant” if there are no definitive court decisions or guidelines to follow? The U.S. Department of Justice (DOJ), which oversees enforcement of the ADA, was expected to announce rules in 2010 establishing guidelines on how to develop an “ADA compliant” website, but the DOJ never established such rules, and none are expected for the foreseeable future. In the absence of express governmental guidance, the World Wide Web Consortium’s Web Content Accessibility Guidelines, version 2.1 (WCAG 2.1) are the generally accepted set of guidelines for digital/ website accessibility. Although the WCAG 2.1 aren’t official government rules, they have unofficially been adopted and are favored by the DOJ, the federal courts, and ADA accessibility advocates.

PRACTICAL STEPS TO CONSIDER

Whether or not you received a prelitigation “demand letter” or were named as a defendant in an ADA website lawsuit, it may be pragmatic to incorporate an accessibility tool into your website as a proactive measure. Doing so could act as a deterrent to future demand letters or litigation, and may help resolve any current matter. In addition, if you received a pre-litigation “demand letter,” a notice of a complaint filing, or an actual complaint, you are strongly encouraged to contact your attorney.

ADDITIONAL INFORMATION

For a list of accessibility tool vendors, additional educational resources, or contact information for an attorney versed on this issue, contact IA&B Corporate Affairs Director Don Bankus at 800 998-9644, ext. 603 or DonB@IABforME.com.

This document is not a legal opinion and should not be relied upon as such. The intent of this document is to provide a general background regarding the topic or topics discussed, not to provide legal advice. Producers and agencies should consult an attorney regarding specific situations and specific questions with respect to the topic or topics covered in this document. Neither the Insurance Agents & Brokers nor any of its employees shall be responsible for any errors or omissions regarding any statements made in this document, nor any errors or omissions regarding any statutes, regulations, court rules, and/or any other government documents cited in this document.