By / Karen Forner
State and federal antidiscrimination law requires places of public accommodation to ensure all people enjoy equal access to their goods and services, but it is unclear how much the law requires when it comes to a business’s website and its accessibility to disabled persons. Similarly, it is unclear how much website accessibility issues impact employers apart from their status as a place of public accommodation. Some plaintiffs’ attorneys look to be testing these waters—sending demand letters and in some cases filing lawsuits—by claiming employers discriminated against their disabled clients because the employer’s website was not accessible.
The overlap between public accommodation and employment discrimination law is sometimes overlooked, but they are distinct protections with the larger antidiscrimination framework. The American with Disabilities Act (ADA) enshrines its public accommodation requirements in Title I and employment discrimination protections in Title III. The Washington Law Against Discrimination (WLAD) includes similar protections but extends these duties even further, prohibiting discrimination at places of public accommodation on the basis of any protected status (i.e. race, creed, color, national origin, sex, military status, sexual orientation, or disability and the use of a trained service animal). Aiming to end discrimination, the law imposes different levels of responsibility depending on who is acting. For employers, the law obligates employers to engage in an interactive process upon notice that an applicant or employee requires a reasonable accommodation. Places of public accommodation, on the other hand, must take affirmative, proactive steps to ensure equal access to goods and services.
Employers that also qualify as a place of public accommodation* should note that the Ninth Circuit (a federal court circuit that includes Washington) recently concluded that places of public accommodation must make their websites ADA compliant if they are connected to a physical “place,” see Robles v. Domino’s Pizza, LLC Case, No. 17-555 (9th Cir. 2019). Whether and how far these protections extend to employees or applicants, however, is uncertain because there is no helpful state or federal guidance explaining how these antidiscrimination requirements interact or apply to a private employer’s website. So far, the Equal Employment Opportunity Commission (EEOC) has declined taking an official position. It has nevertheless suggested that online application systems should permit a reasonable accommodation process and further opined that an employer who hires exclusively through a non-accessible website risks violating the ADA and presumably the WLAD.
Regardless of how a website accessibility challenge is made, the solution is murky. There is no state or federal law defining what makes a private employer’s website accessible. Two accessibility standards nonetheless stand out: Section 508 standards for federal agencies under the Workforce Rehabilitation Act and the Web Content Accessibility Guidelines (WCAG) developed by W3C (an international consortium that develops web standards).
- Section 508 describe how to structure a website’s HTML, including tables, how to deal with content from external sources (such as audio, video, and other multimedia), and describes presentation and behavior guidelines.
- WCAG guidelines ensure web content is accessible under four key principles:
- Perceivable – Text alternatives for non-text content, dealing with multimedia, creating content that is easy to see and hear
- Operable – Ensure all interactions can be done via keyboard, allow adequate time to read and use content and help visitors navigate and find content easily
- Understandable – Make text readable and understandable, ensure text operates in predictable ways
- Robust – can support current and future tools designed to support accessibility
Washington State adopted its own website accessibility standards modeled after Section 508 for its state offices and websites, and Washington State’s Department of Services for the Blind offers, but does not mandate, additional guidance for website accessibility at https://dsb.wa.gov/resources/accessible-documents-and-websites.shtml#web.
Without clear standards to apply, some employers might avoid the issue and hope for the best, but a small investment now is likely to avoid increasing costs after a demand letter or lawsuit is filed. ADA and WLAD violations add up quickly because in addition to the cost of compliance, noncompliant businesses are also responsible to pay the plaintiff’s attorney’s fees, which can be tens of thousands of dollars. As the new year approaches, employers should consider budgeting money to talk with a web developer or other IT person with the technical knowledge to make your website ADA compliant.
*The WLAD defines places of public accommodation as any business that sells “goods, merchandise, services, or personal property” to the public or places where the public “gathers, congregates, or assembles.” RCW 49.60.040(2). The ADA sorts places of public accommodation into twelve categories, including retail stores, restaurants, movie theaters, hotels, schools, day care facilities, recreational facilities, professional offices, transportation depots, amusement parks, museums, and gymnasiums. 42 USC §12181(7). ■
Karen Galipeau Forner is the founder and managing member of K-Solutions Law in Bellevue, Washington. Karen represents employers in the areas of workplace safety, workers’ compensation, administrative appeals and employment law. She is a frequent presenter at continuing legal education seminars and to employer groups. Karen has over 25 years’ experience defending and resolving a wide range of workers’ compensation, WISHA and employment law matters. Prior to starting K-Solutions Law, Karen worked as senior attorney at a law firm in Seattle and for the Washington State Attorney General’s Office. She was the Program Advisor for the Industrial Insurance and Washington Industrial Safety and Health Act (WISHA) Discrimination Programs for more than ten years and the Program Advisor for the Workers’ Compensation Self-Insurance Program. Karen also litigated complex WISHA, Industrial Insurance, Third Party and Crime Victims Compensation Act cases. She recently served on the Washington State Bar Association Character and Fitness Board.
