DOJ added more confusion to website accessibility. With the golf industry reeling from increased lawsuits over their websites not being ADA compliant, there'd been hope the Department of Justice (DOJ) would release guidance to clarify specific requirements businesses could follow to ensure ADA compliance.
On Sept. 25, 2018, the DOJ released guidance reaffirming that businesses offering products and services for public accommodation are required to ensure their website is usable by those with visual and hearing impairments. But, their letter failed to offer how this must be achieved.
In their letter the DOJ wrote:
"The Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with the statute's requirements. Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have the flexibility in how to comply with the ADA's general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA."
This new guidance gives business owners and operators permission to define their own standards for accessibility as well as a defense against claims made by plaintiffs that have based their claims on the private industry standards known as Website Content Accessibility Guidelines (WCAG) 2.0 or 2.1.
The solution to this problem remains complex. Unfortunately, for many, the answer will be decided in local courtrooms. Owners and operators may elect to offer alternative solutions, like one NGCOA member who chose to add a button on their site that provided those using reader devices with a recorded message inviting them to call or email the golf course and provided the contact information. Logically, this would appear to satisfy the ADA requirement. However, if challenged, the courts may find it fails to meet the minimum access standard. Either way, the owner or operator may still encounter lawyer and court fees to support their position.
NGCOA members may wish to develop their own solution, but we would strongly recommend seeking legal advice to protect your financial interests before going it alone. To be safe, NGCOA encourages members to consider the industry accepted standards offered by WCAG. The Department of Justice guidance reaffirms the obligation to make websites accessible. Conformance to WCAG currently remains the only predictably safe way to ensure ADA website compliance.
Director of Advocacy
Daniel Island SC