Jack McMahan

Just before Christmas the concerned headmaster of a church school in Virginia contacted me looking for advice. The week before the call an article from the Richmond Times – Dispatch was sent to him by a concerned administrator.

During a December 2016 meeting of the Powhatan Public School Board (Richmond, Virginia), Dr. Eric Jones, Chairman, informed the board members that he had received a letter from the Office of Civil Rights (OCR) earlier in the month saying not all content on the school’s website was accessible for people with disabilities.

Jones went on to say that the complaint didn’t come from anyone in Powhatan but from an individual or group in Michigan that is filing hundreds of similar complaints across the nation.

As a result of the letter, Jones was advising the board to substantially reduce website content; primarily uncaptioned photos, videos and PDF documents that are difficult, if not impossible to be accessed by e-readers commonly used by people with sensory disabilities.

The headmaster’s question regarded what their school should do with regard to website accessibility compliance. His concerns were valid but not for the reasons he expected.

A complex situation

Church entities are exempt from Title III of the ADA (42 U.S. Code § 12187 Exemptions for private clubs and religious organizations). Learning that was of some comfort to the headmaster.

During our discussion, however, I learned that the church school was accepting federal funds to subsidize a school milk program. I suggested that he need to explore the related agreements further because the terms of the subsidy agreement could subject the school to the requirements of Section 508 of the 1973 Rehabilitation Act (29 U.S.C. § 794 (d)) at which point Title III could be moot.

Interestingly I also learned that the school’s legal counsel was of the opinion that websites were not a “place” (i.e. facility) and, for that reason, was not subject to the ADA.  In fact, the school’s attorney said this:

Title III of the ADA provides for equal access for persons with disabilities in places of public accommodation. Title III of the ADA requires individuals with disabilities to be offered the ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. Title III lists 12 types of places of public accommodation (airport, museum, park, school, gym, etc.). A website is not listed. That fact and the interpretation of it appear to be driving the split treatment of those issue in courts nationwide.

I completely agree. A website is not a tangible place, however, in my opinion, a website (along with Facebook, Twitter, Snapchat and other electronic media) is a service, and in many instances, is an entity’s product, delivered via an e-channel. Therefore, the content served up on websites and other electronic channels should be made accessible according to the Web Content and Accessibility Guidelines 2.0.  DOJ agrees as evidenced by several recent cases.

Summary of key points:

  1. Church entities are generally exempt from most aspects of ADA although Title I (employment) does apply.
  2. Legal entanglements can arise when entities assume compliance responsibilities by contract. ADA Coordinators must be careful to fully evaluate all potential risk exposures that might have a conditional effect on accessibility.
  3. Accessibility under Title II or Title III of the ADA is not limited to physical “places”.
  4. Courts have repeatedly upheld the position that websites and other forms of electronic information and technology must be made accessible under both /title II and Title III of the Americans with Disabilities Act.
  5. Have your website reviewed by professionals familiar with WCAG 2.0 for compliance. WCAG standards were formally adopted by DOJ recently and will be implemented by the 1st quarter of 2018.