DOJ Requires Compliance with Voluntary Guidance for Website Accessibility
Website Operators: Be Aware of Efforts to Expand Legal Requirements Through Compliance Reviews, Litigation and Settlement Agreements
HIGHLIGHTS:
- The DOJ has announced a compliance review and subsequent settlement agreement with two companies regarding removal of purported barriers to the accessibility of their websites.
- The settlement demonstrates that enforcement of website accessibility will continue as a growing trend even before the government issues the anticipated regulations to address website accessibility.
The Department of Justice (DOJ) has announced a compliance review and subsequent settlement agreement with Ahold U.S.A. Inc. and Peapod, LLC – the owner and operator of peapod.com, an online grocery shopping website. The settlement requires the companies to remove purported barriers to the accessibility of their website using non-mandatory guidance established by an international website standards organization as the barometer for compliance. In doing so, the settlement demonstrates that enforcement of website accessibility will continue as a growing trend even before the government issues the anticipated regulations to address website accessibility.
DOJ Identifies Specific Accessibility Barriers
Ahold and Peapod had been using a screen reader accessible version of their website and had been providing technical assistance to customers with disabilities who have difficulty using their website (including telephonic ordering with no additional delays in delivery or charges), but DOJ did not consider those accommodations to be satisfactory.
DOJ asserted the following accessibility barriers on the peapod.com website:
- images, buttons and form fields are unlabeled or have inaccurate alternative text
- pop-up modal windows are not reported to screen readers
- frames are not named or identified
- tables are missing header information and proper mark-ups
- boldface type is used to show which fields are required
- captioning on the website is inaccurate
- Java script used throughout the website is not available to users who cannot use a mouse
Settlement Agreement Terms
In entering into the settlement agreement with DOJ, Ahold and Peapod agreed to:
- ensure that their website and mobile applications comply with voluntary guidelines established by an international website standards organization
- try to require that vendors of third-party content also comply with these voluntary guidelines
- designate a website accessibility coordinator
- establish a website and mobile application accessibility policy
- solicit feedback on the accessibility of their website and mobile applications
- prioritize the elimination of bugs that create accessibility barriers to peapod.com
- conduct automated accessibility testing of the website and mobile applications
- retain a website accessibility consultant
- establish a user accessibility testing group to conduct annual tests
- provide annual trainings on website accessibility
- submit annual reports to the DOJ detailing their compliance with the settlement agreement
Although many courts have been skeptical about website accessibility claims (especially where the websites are not connected or related to any physical location), website operators should be aware of aggressive efforts to expand legal requirements through similar compliance reviews, litigation and settlement agreements.
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Holland & Knight lawyers have extensive experience in the legal issues relevant to Web design and content development as well as experience in defending and settling design and construction lawsuits and providing comprehensive guidance on accessibility issues. The firm's lawyers have also defeated plaintiffs' attempts to enforce non-mandatory guidelines as legal requirements, resulting in holdings from federal courts that deviations from non-mandatory guidelines cannot form the basis of compliance with accessibility law.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.