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Web-related bias rules up in the air

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Companies are in limbo as they wait for long-delayed rules on Web accessibility and enforcement actions continue.

And, no clear judicial consensus on the issue has emerged for Internet-only firms. Some observers say business website accessibility may wind up before the U.S. Supreme Court, particularly if the Department of Justice continues to delay issuing promised regulations under Title III of the Americans with Disabilities Act.

Turning printed information into audio for people who are blind or adding closed captions to audio for the deaf are among the steps businesses can take to make their websites accessible.

Meanwhile, more typical Title III litigation, which often deals with issues such as parking lot accessibility and aisle widths, is increasing rapidly, according to an analysis by Seyfarth Shaw L.L.P.

Title III prohibits discrimination on the basis of disability in places of public accommodation, including restaurants, movie theaters, schools, day care and recreational facilities, and doctors' offices, and requires new or remodeled public places, as well as privately owned commercial facilities, to comply with ADA standards.

While the 1990 law does not explicitly address website accessibility for the disabled, the Justice Department has taken the position that Title III does apply.

The Justice Department first said it planned to issue regulations on public website accommodations in 2010, but has delayed them several times.

The current deadline is April 2016. However, the agency is expected to issue website accessibility regulations soon under Title II of the ADA, which covers state and local governmental entities.

Meanwhile, the agency has sought to force numerous firms to comply with the accessibility requirement. Firms settling such cases have agreed to comply with the Level AA Success Criteria of the Web Content Accessibility Guidelines 2.0, voluntary guidelines issued in 2008 by the World Wide Web Consortium.

The guidelines call for websites to provide text alternatives for any nontext content, including large print, braille, audio, symbols or simplified languages. The Justice Department's eventual rules are expected to reflect these guidelines.

Settlements include the widely publicized April agreement between the Justice Department and Cambridge, Massachusetts-based edX Inc., a nonprofit founded by Harvard University and Massachusetts Institute of Technology that provides online college courses.

Under the agreement, edX said it would comply with the World Wide Web Consortium standards on its website, platform and mobile applications within 18 months. There was no fine.

Meanwhile, the judicial picture is unsettled.

“If there is a connection between your website and a traditional public accommodation covered by Title III, there is no question the law is applicable,” said Joshua A. Stein, a member of law firm Epstein Becker & Green P.C. in New York. Retailers that offer in-store coupons online are obligated to have an accessible website, for example. Less clear-cut, though, is whether Title III applies to companies with only an Internet presence.

In National Federation of the Blind v. Scribd Inc., a Burlington, Vermont, federal judge ruled in favor of a liberal interpretation of the ADA.

The court held in March that the San Francisco-based digital library, which has subscription services on its website, was a place of public accommodation and violated Title III because it was inaccessible to the blind.

However, in an April ruling in Melissa J. Earll v. EBay Inc., the 9th U.S. Circuit Court of Appeals in San Francisco took a narrower view, holding that online-only companies are not subject to the ADA. A place of public accommodation “requires some connection between the good or service complained of and an actual physical place,” the court ruled.

When the Justice Department does issue its rules, that will “create an additional compliance issue” for private employers, most of which “at this point are not focused on website accessibility,” said Joseph J. Lynett, a shareholder at Jackson Lewis P.C. in White Plains, New York.

In the meantime, experts recommend companies move now to make their websites accessible to the disabled.

Expected regulations, Justice Department enforcement actions and groups advocating on behalf of the disabled make a “strong case for the best risk-adjusted strategy being to take steps now to make websites accessible,” said M. Brett Burns, a partner at Hunton & Williams L.L.P. in San Francisco.

“It's a matter of good business sense,” said William D. Goren, a Decatur, Georgia-based attorney and ADA consultant.

The cost adapting a website for the disabled can range from a relatively small amount to hundreds of thousands of dollars, depending upon the site's complexity, said Kristina M. Launey, a partner at Seyfarth Shaw in Sacramento, California.