(This story originally appeared in MJBizMagazine.)
For people with disabilities, being able to navigate a website is just as important as the accessibility to buildings that’s required under the Americans with Disabilities Act (ADA).
Signed into law more than 30 years ago, the ADA eliminates discrimination against people with disabilities in all public places, including office buildings, public transportation, schools and any other public place.
While there isn’t a law that specifically calls for company websites to comply with the (ADA), the expectation has developed over time in case law.
Andrea Golan, counsel with Denver-based cannabis law firm Vicente, said that courts are split over public-accommodation language, so it’s unclear whether websites truly fall under the ADA.
“California says websites are not subject to ADA, but other courts view it more broadly and find that websites are places of public accommodation,” Golan said.
Regardless of whether a cannabis business is in a state that enforces ADA compliance for websites, companies are at risk of being sued if their sites are not accessible to people with disabilities, said Liz Hartsel, a partner with Denver-based Fortis Law Partners.
“It’s not a matter of if you will get sued, it’s a matter of when,” Hartsel said. “It’s in your best interest as a business owner to make sure your website is ADA compliant. Most businesses don’t want barriers for people to access their websites and stores.”
Settlements widespread – but pose problems
Hartsel said that of the roughly 50 web-accessibility cases she’s seen in the past two years, all have settled without a trial.
If a lawsuit is filed against a business, the best course of action is to remediate the website to make it accessible immediately, she said.
“It’s extortion,” Hartsel said. “You tell your clients that it’s not worth their time to fight it. The question is: How do we get the settlement down to an amount the client can afford?”
It’s less costly to settle a lawsuit than it is to defend one, so most companies gravitate toward settlements, said Rob Thorpe, a partner with New York-based law firm Barclay Damon.
“The problem with that is the more settlements an attorney gets, the more inclined they are to pursue these lawsuits,” Thorpe said. “You’re fueling the fire when you settle.”
While some courts have dismissed ADA website claims as moot when the alleged violations have been remedied, other courts have held that ADA cases involving websites can never be moot because companies are constantly updating their websites.
ADA compliance cases are not like those involving physical property, where the defendant can build a ramp to make an entrance accessible or invest in another one-time, permanent solution.
Any time a website is updated, the people updating it must ensure it remains in compliance with ADA guidelines – or the company could face another lawsuit.
“It is important to ensure that a company’s website is accessible now and remains accessible going forward,” Hartsel said.
If a company is sued for non-compliance, it’s faced with the choice between hiring an attorney to defend it or settling the case quickly at a cost of $7,500-$20,000, said Scott Piper, an attorney with the Harris Beach law firm in New York.
“A handful of firms, especially in New York state, will file 20 or 30 complaints at a time in the Southern and Eastern districts in New York, which are favorable for these kinds of cases,” said Piper, a labor and employment attorney. “Typically, they don’t have much interest in taking it to the mat. They file for a quick settlement.”
Piper said ensuring your website is accessible to people with disabilities is important for two reasons: to reach the most people you can, and to avoid litigation.
“From a business perspective, you want to make sure the maximum number of people can reach your website. You want more consumers, and you don’t want the reputation of not being consumer-friendly,” Piper said. “You also don’t want to get sued. Most business insurance does not cover lawsuits for this type of issue. Most of the time, it’s the business paying out of pocket.”
While it’s rare for the federal government to file a complaint for a noncompliant website, if it does bring some type of enforcement action against a company, regulators can seek civil damages of $5,000 for the first offense and $110,000 for the second offense, said Mukunda Shanbhag, an attorney with Bianchi & Brandt in Scottsdale, Arizona.
“Regulators are taking the issue of website access more seriously,” Shanbhag said. “It’s being seen more as an issue of access, like walking into a store. You get most of your information online now.”
Ensuring the website is accessible to all users, regardless of their abilities, requires understanding the needs of people with disabilities – as well as the technologies and techniques that can be used to make a website accessible – said Ben Stewart, director of web and SEO at PufCreativ, a marketing and brand-development agency in Denver focused on the cannabis industry.
“This is especially important within the cannabis industry, where many individuals rely on cannabis for its medical benefits,” Stewart said. “Many … are disabled and require an ADA-compliant website to learn about and purchase medical marijuana.”
Web accessibility means that websites, tools and technologies are designed to be accessible to people with disabilities, according to the World Wide Web Consortium, an international community that develops standards to ensure the long-term growth of the web.
Websites should be accessible to people with any disability, including auditory, cognitive, neurological, physical, speech and visual.
The checklist to creating an accessible website is long, said Pete Foytho, creative director and founder of Burlington, Vermont-based Clutch Creative Co.
“You have to make sure there are alternative ways to receive information,” Foytho said.
“If there are a lot of images, make sure they have alt tags so people can use a screen reader. If it’s a video, make sure there’s another way to access that information for people who are hearing- or vision-impaired.”
Issues web designers must solve include poor color contrast, which can make it difficult for people with limited vision or color blindness to read, and putting captions on videos so that hearing-impaired people can understand what is happening.
It’s also important to include text alternatives (alt text) on images so that people who are blind can understand the content and purpose of images such as charts, illustrations and photographs.
Screen readers convert digital text into audio to enable users with visual impairments to engage with a website, but if the web designer hasn’t included alt tags on the content, they are worthless.
“If there are a lot of images, make sure they have alt tags so people can use a screen reader,” Foytho said. “People might skip around with a screen reader, so you want to make sure if they hit ‘next’ that it goes to the right page. You need to make sure everything can be read in the order that makes sense.”
Using only color to differentiate information will make it difficult for people who are color blind to decipher the content, and mouse-only navigation will not let people who can’t use a mouse or trackpad to navigate content if they use keyboards to get around a website.
Online forms might be difficult for people to fill out if they don’t have things such as labels that screen readers can convey to users, including text that reads “credit card number” where the number should be entered or “error” to indicate that a field is missing or incorrect.
Website accessibility is a key component for any company, cannabis or otherwise, but many business owners aren’t aware that people with disabilities have trouble with navigating their sites.
“Very few of our cannabis clients ask us about ADA compliance,” Foytho said. “Cannabis clients are worried about their menu and making sure people can find their website so they can order. But accessibility should be a priority. No one is safe from liability.”
(Read more at “‘Serial plaintiffs’ target cannabis business websites.”)