Federal Court Finds Telephonic Access Could Be an Alternative to Website Accessibility
Authors: Kelly M. Peña (Miami), David Raizman (Los Angeles)
Published Date: October 20, 2017
A federal district court in Los Angeles last week endorsed the possibility that a business may be able to avoid making a website accessible if it provides the same goods and services through telephonic customer service. The U.S. District Court for the Central District of California, in Gorecki v. Dave & Buster’s, Inc., No. 2:17-cv-01138-PSG-AGR (October 10, 2017), found that the U.S. Department of Justice (DOJ) had mentioned this alternative to website compliance in its 2010 Advanced Notice of Proposed Rulemaking. But the court denied Dave & Buster’s motion for summary judgment because it had not established beyond factual dispute that its website direction, which stated, “If You Are Using A Screen Reader and Are Having Problems Using This Website, Please Call (888) 300-1515 For Assistance.,” was itself accessible to screen reading software.
Even though the DOJ has still not issued any regulations or guidance as to what makes a website accessible under the Americans with Disabilities Act (ADA) and recently placed these promised regulations on the “inactive list,” most courts have held that private websites of businesses open to the public must still conform to Title III of the ADA. The Gorecki decision was the first to adopt the DOJ’s statement that “covered entities with inaccessible Web sites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site.”
Although making a website accessible to those using screen reading software remains the preferred method of avoiding exposure to website accessibility litigation, this decision invokes an important option first raised by the DOJ that providing the same goods and services available on the website through telephonic or other means may also satisfy a business’s obligations under the ADA.
But making goods and services accessible telephonically is not as easy as it sounds. Businesses pursuing this avenue of compliance may want to consider taking the following steps:
Establish a telephone number to respond to customer calls.
Make sure that the staff responding to calls can provide access to the goods, benefits, and services offered on the website. For example, if customers can purchase items through the website, they must be able to purchase those items over the phone as well.
Because the website is available at all times, make sure that your telephonic customer service is available at the same times, including weekends, holidays and around-the-clock.
Provide a banner on the website that directs individuals using screen reading software to the telephone number.
Make sure that the banner is prominently displayed on each page of the website.
Make sure that the banner can be located and read using screen reading software.
Even if a business is in the process of making its website accessible to screen readers, it may still want to consider adopting these measures until the business has reached an adequate level of website compliance.
Kelly M. Peña is an associate attorney in the Miami office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Ms. Peña’s practice focuses primarily on employment litigation. Ms. Peña represents management in administrative proceedings as well as all phases of litigation. She draws from considerable experience representing employers in discrimination claims, harassment claims, retaliation claims, public accommodation claims, and benefits litigation. Ms. Peña...
David Raizman is nationally known for his disability rights practice, specifically for his work under Title III of the Americans with Disabilities Act. In 2012, he was recognized by the Los Angeles Daily Journal as one of the top labor and employment attorneys in California and has been recognized multiple times as a Southern California Super Lawyer. David works extensively with hotels, sports franchises, stadium and arena owners and operators, amusement parks, theaters, retailers,...