Most companies with 15 or more employees that are open to the public are (or should be) familiar with the Americans with Disabilities Act (ADA), which requires such companies to provide wheelchair ramps, special door knobs, and wheelchair accessible bathroom stalls.  However, relatively few companies realize that their websites are also subject to ADA requirements, and must accommodate visitors with visual and hearing disabilities.

The U.S. Department of Health and Human Services has published a Web-based Internet and Internet Information and Applications Checklist (the “508 Checklist”) intended to help companies to comply with the ADA requirements.  The list includes the following types of guidance:

  • Every image, video file, audio file, plug-in, etc. should have an alt tag;
  • Complex graphics should be accompanied by detailed text descriptions;
  • When images are also used as a link, the alt tag must describe the graphic and the link destination; and
  • Pages should not contain repeatedly flashing or “strobing” images.

In light of a recent surge in class action lawsuits, every company subject to these ADA requirements are strongly advised to review their websites for compliance.  In the brick-and-mortar world, businesses are normally sued under the ADA after a disabled plaintiff notices the violation while attempting to access the business.  Recently, however, plaintiffs have adopted a new tactic known as a “drive by” claim.  As implied by its title, plaintiffs bringing a drive-by claim need only drive by a business and notice an ADA violation in order to qualify as a claimant and receive a monetary settlement after suing or threatening to sue.

The virtual equivalent of a drive-by claim is a surf-by claim, and it is far, far easier for would-be plaintiffs to locate an ADA violation on the Internet.  Like shooting fish in a barrel, all they need do is sit at home, surf the web, and locate hundreds of violators in the space of a few hours.  Indeed, this very plethora of potential victims is very likely the only protection that companies who fail to monitor their websites are likely to have.  The larger the herd, the less likely it is that a single gazelle will be brought down by a hungry leopard. 

Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.