NFIB White Paper: ADA Turns 31, Website Compliance Uncertainty Persists

Date: July 30, 2021

Since the dawn of the Internet, small businesses have yet to receive clear guidance on how the Americans with Disabilities Act (ADA) applies to their websites.

On July 26, the NFIB Small Business Legal Center (SBLC) released a white paper titled, “The ADA and Small Business: Website Compliance Amid a Plethora of Uncertainty.” The paper discusses the main present-day challenge facing small businesses concerning the Americans with Disabilities Act (ADA) — the difficulties of website compliance due to the lack of clear standards on when, how, or if the ADA applies. 

“When the ADA was signed into law, no one could have envisioned how the internet boom would impact small business sales,” said Karen Harned, the Executive Director of the SBLC. “Small businesses work hard to adapt to new technology and business practices, but the ADA in particular challenges small businesses to comply with outdated legislation. Owners are having to debate whether they forego competition in the online market due to the high compliance costs.” 

SEE THE FULL WHITE PAPER

The ADA was signed into law 31 years ago this week by President George H.W. Bush. At the time, NFIB and other business organizations warned that aspects of the law would be detrimental to small businesses. Since then, the ADA has protected Americans with disabilities from discrimination, but also proven challenging and unclear for small businesses.

One major area of concern is with online presence. The ADA was passed long before the Internet became an everyday commercial forum for sales transactions and business promotion. Today, many small businesses make much of their revenue from online sales and engaging in online promotion. Yet small businesses are subject to a relic of an old era, as the ADA has not been updated to clarify how it should be applied to non-physical structures and goods, like the Internet.

Over the decades, the U.S. Department of Justice (DOJ) has attempted to provide guidance on ADA website accessibility  through the issuance of Notices of Proposed Rulemaking, amicus brief arguments, and response letters. However, these actions have not helped businesses understand if and how their business website is impacted by the ADA.  

While it has the power to amend the ADA, Congress has proven itself incapable of providing clarity and protection for small businesses. Multiple bills have been introduced that would define how the ADA applies to small business websites, protect small business against frivolous lawsuits, and tell them exactly what they must do to comply. But Congress has failed to pass a single one.  

Federal courts have also weighed in on the issue of ADA website accessibility, but as is often the case, the courts have reached different results. With the U.S. Supreme Court declining to provide clarity the judicial branch has only increased the confusion for small business owners. 

The result has been a no-win scenario for small businesses. If they wish to sell products online, they must contend with high compliance costs even though the legal requirements regarding the steps they should take to make their website ADA accessible remain unclear. If they  make no changes to their website to accommodate the disabled, they risk the prospect of lawsuits and expensive judgments or settlements. And if they choose not to sell online at all, they put themselves at a competitive disadvantage against larger firms that can pay accessibility experts to update their websites. For a full overview of this complex topic, you can read the complete white paper here. 

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