The legal issue of accessible websites has gone through many interpretive iterations over the years. But the current viewpoint goes back to the Target case in 2006 which the National Federation of the Blind (NFB) sued Target, alleging first that target.com was inaccessible, and second that the inaccessibility of target.com violates the Americans with Disabilities Act.  In 2008 Target settled, becoming the first in a long line of cases requiring website accessibility to retailers’ websites.

Although the courts have been split on this issue over the years, the U.S. Department of Justice (DOJ) has made many settlements on website accessibility. DOJ has stated it will publish preliminary regulations on accessibility of online content for places of public accommodation under Title III of the ADA by fiscal year 2018.

Now the issue has also become the concern of other federal agencies dealing with employment issues such as the EEOC or the Office of Federal Contract Compliance Programs (OFCCP).  The Partnership on Employment & Accessible Technology (PEAT) conducted a survey of individuals with disabilities and found 46% of respondents rated their last experience applying for a job online as “difficult to impossible.”    The likelihood is that website accessibility will gain greater predominance in future ADA Title I (employment) cases and OFCCP audits.  “Inaccessible technology prevents people with disabilities from applying and interviewing for jobs, and limits the talent pool for employers,” said Deputy Secretary of Labor Chris Lu.

Although there are many types of assistive technology such as separate computer programs or devices such as screen readers, text enlargement software, and computer programs that enable people to control the computer by voice or by assistive technology built into computer operating systems.   

However, this technology requires websites to be designed to be compatible with this software. Most career sites are not accessible. Many career pages have pictures or videos on the website.  For images in general, many are without text equivalents. In addition, there may be no captioning on videos.    

Another concern is the widespread use of pdf documents on these sites. These documents should also be provided in alternative text-based format, such as HTML or RTF (Rich Text Format), in addition to PDF.  Text-based formats are the most compatible with assistive technologies.

Another issue is color and font size of text.  Although designers have aesthetic preferences, many people with low vision do not see webpages the same as other people. Some see only small portions of a computer display at one time. Others cannot see text or images that are too small. Still others can only see website content if it appears in specific colors. Designers can develop websites so they can be viewed with the color and font sizes set in users’ web browsers and operating systems and users can manipulate the color and font to make it more readable. 

The DOJ also recommends including a “skip navigation” link at the top of webpages. These links allow people who use screen readers to ignore navigation links and skip directly to webpage content and to minimize blinking, flashing, or other distracting features. 

If employers, and HR, haven’t already, they should consider conducting a technical accessibility review of their current web content pursuant to the Web Content Accessibility Guidelines (“WCAG”), which are the present industry standard for website accessibility and which have been cited by the DOJ in recent settlement agreements on the subject.

In addition, the U.S. Department of Labor Office of Disability Employment Policy (ODEP) has created a free online tool called Talent Works. This tool will provide assistance to employers to ensure that their online applications for employment are accessible for individuals with disabilities.  TalentWorks provides general background on accessibility and e-Recruiting, as well as practical tip sheets for making online job applications, digital interviews, pre-employment tests and resume upload programs accessible.

Sources: The National Law Journal 11/30/15, 4/12/16; Akerman LLP 4/18/16; www.ada.gov;   http://peatworks.org/