Are your website and online application process accessible to applicants with disabilities? Do they need to be? Part of the answer depends on what type of business you run — and, unfortunately, federal law is somewhat unsettled in this area. There are, however, at least some guidelines and best practices for employers.
Rules and litigation
Title III of the federal Americans with Disabilities Act (ADA) prohibits places of public accommodation from discriminating against individuals based on their disabilities.
The U.S. Department of Justice's (DOJ) Civil Rights Division defines "places of public accommodations" as businesses that are generally open to the public and that fall into one of 12 categories listed in the law, including restaurants, movie theaters, schools, day care facilities, recreation facilities and doctors' offices. The law also requires newly constructed or altered places of public accommodation to comply with physical ADA standards.
Given that the ADA was signed into law in 1990, Title III was largely designed with brick-and-mortar businesses in mind. As more companies took their businesses online, at least in part, stakeholders began questioning whether the ADA's accessibility mandate applied to those operations. DOJ took the position that it does, but in 2010 also published an Advanced Notice of Proposed Rulemaking to clarify covered entities' web accessibility responsibilities and considered the adoption of an existing standard, like the Web Content Accessibility Guidelines (WCAG). Following the change in administrations, however, the rulemaking was shelved.
This does not mean, however, that public accommodations are off the hook when it comes to web accessibility. Plaintiffs filed at least 814 Title III lawsuits in 2017 relating to allegedly inaccessible websites, according to law firm Seyfarth Shaw LLP.
Public accommodations that exist only online aren't necessarily exempt, either. It’s possible that even businesses that lack a physical place are still subject to Title III’s accessibility requirements, Robert L. Duston, a partner in the Washington, D.C., office of Saul Ewing Arnstein & Lehr LLP told HR Dive: "At least one court has said that even if you are online-only, you are still covered."
The Seyfarth blog authors have noted that while the Trump administration’s DOJ isn't likely to push the web accessibility agenda, its inaction will not stop lawsuits. "Only an amendment to the ADA can do that, which we believe is highly unlikely," the authors wrote.
Requirements for employers
So what does all of this mean for employers? Assuming that you're not doing business with the public, Title III doesn't actually apply, but there are some best practices to glean for Title I (employment) compliance.
"What Justice is doing with the regs doesn’t affect employers at all," Duston said. "The whole issue of online applications for employment is a Title I employment issue. Titles III and II both defer back to the EEOC." There can be overlap, however, when a website is running a common portal for employees and customers, he noted.
EEOC hasn't waded into this area, Duston said, but the law does require that employers' application and interview processes need to be accessible. But Title I doesn’t require employers to provide the best thing, said Duston, so "the idea that you might need to make [your online application process] accessible in advance for anyone who might want to apply is inconsistent." Duston said employers should, however, make sure that there is some means for applicants applying electronically — online or via an in-store kiosk, for example — to get help if needed, such as a phone number to call.
"For an online application system that has forms or other unavoidable custom designs, HR should give alternative options such as e-mail, fax, telephone, or mail, to provide the requested information," Beth Loy, principal consultant with the Job Accommodation Network (JAN), told HR Dive via email. JAN is funded by a contract with the U.S. Department of Labor's Office of Disability Employment Policy.
Best practices for employers
The most comprehensive solution, of course, is an accessible online application system. WCAG provides a well-accepted standard, but employers also can take smaller steps. Loy recommended the following:
- Program text descriptions for all visual and graphic material;
- Use audio and open captions for audio and video applications;
- Keep a standard header and footer to decrease confusion from page to page;
- Minimize reliance on color;
- Allow for keyboard navigation;
- Allow users to control sounds, visuals and time limits;
- Provide accessible documents;
- Program the default human language of a page so that assistive technologies, such as Braille translators and screen reading software, accurately translate content;
- Engage people with disabilities in the testing process; and
- Have an expert review the system for accessibility.
The role of leadership
As with most things HR, buy-in from higher-up will be key. "It's always important to engage a company's leadership in making accessibility a priority," said Loy. "For an online application system to be accessible, it takes a team of experts in website design, human resources, computer programming, and security."
If you can do that, you'll not only expand your applicant pool in this tight labor market but also improve your hiring efficiency and recruitment metrics, Loy said — not to mention improve your diversity and inclusion efforts.