When a Website is Discriminatory for Not Being Accessible

If your nonprofit has a website, you could be at risk.

Inaccessible websites are increasingly being targeted as violations of state and/or federal disability accommodation laws.

person with headphones on using a screen reader with a laptop

An online presence offers a variety of benefits to any nonprofit — from gaining the attention of potential donors, to seeking the help of volunteers, to advertising and offering services to the community. With these benefits comes risk — risk that not everyone can access the information equally.

State and federal laws require that websites be readily accessible and usable by individuals who have a disability — meaning they must be navigable to disabled people who use assistive technology. So, when an individual has difficulty navigating your nonprofit’s website because they have low or limited vision, for instance, you could be faced with allegations of disability discrimination.

What’s more, if you fail to maintain your website in a form that is accessible to someone visually impaired, or you fail to take corrective action to make that website accessible, you may be faced with a complaint of intentional discrimination — and damages could be significant.

Inaccessible websites are increasingly being targeted as violations of state and/or federal disability accommodation laws, and if your nonprofit has a website, you could be at risk.

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination in places of public accommodation, including businesses and nonprofit service providers. Without getting into the nitty gritty of state and federal court decisions, we are learning that it’s becoming the standard that organizations (including nonprofits) offering any online presence of their services proactively ensure that their website is accessible to those using assistive technology.

Lawsuits alleging inaccessible websites are on the rise, with states like New York, California, and Florida leading the rest of the nation. And, now that much of the nation has relied more heavily on gaining information online, it’s easier than ever. Unlike a requirement to visit a place of business, a plaintiff only has to open their web browser from the comfort of their home. It’s all too familiar that online access has proliferated during the recent pandemic.

Examples of Barriers to Website Accessibility

Individuals with disabilities rely on supportive technology to appreciate what those without limitations can experience. Website access is no different.

Websites that are not designed or modified to support assistive technology may lack features that would otherwise allow individuals with disabilities the same experience online as those without disabilities.

Examples of barriers to website accessibility include:

  • Poor color contrast
  • Lack of text alternatives for images
  • Failure to caption videos
  • Inaccessible online forms
  • Lack of keyboard navigation

How to Become Accessible Online

Standards being followed and considered to ensure nondiscrimination and effective communication in web accessibility can be found in the adoption of the Web Content Accessibility Guidelines (WCAG). Examples of what you can do to become more website accessible include:

  • Photographs or images you post should use Alternative Text, which offers a written description of an image when the mouse is placed over that image.
  • Make all functionality available from a keyboard
  • Make text readable and understandable
  • Hire individuals with disabilities to test websites and apps; document efforts to make sites accessible to demonstrate intent to accommodate, audit every change.
  • Look to sites such as the W3C for accessibility fundamentals
  • Secure the advice and help of someone competent and knowledgeable in web design
  • Look to the WCAG 2.0 Level AA to achieve accessibility for those limited by disability

What Does Insurance Cover?

Not all federal circuit courts are in agreement on whether a website is covered by the ADA accommodation requirements; this remains uncertain. What we do know, however, is that plaintiffs’ attorneys are filing these suits and it will become clearer with time — but we also know there are ways to protect your nonprofit.

If you get a notice of claim or information from any individual alleging inaccessibility issues, you should notify your broker right away. Coverage may exist through your Directors and Officers (D&O) insurance policy. Upon receipt, we will investigate and provide you with a coverage analysis and, when there is coverage, get involved right away to mitigate exposure to the allegations.

Start today on evaluating how your website would perform for those with disabilities — we want to be sure all have equal access… and we also want to avoid preventable claims.