By:  Alisa N. Carr, Esq.

While public accommodations await the Department of Justice’s (“DOJ”) publication of technical standards for website accessibility, in November 2013, the U.S. Department of Transportation (“DOT”) adopted a Final Rule that requires the websites of U.S. and foreign air carriers, which market air transportation to the general public in the United States, to conform to WCAG 2.0, Level AA success criteria.

Entitled “Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports” the DOT Final Rule requires covered airline websites to be WCAG 2.0 Level AA compliant as of December 12, 2016.†

Of particular interest is the DOT’s mandate that air carriers test the usability of their primary website in consultation with organizations or members with certain “disability types”:

Similarly, in this final rule, the Department is requiring carriers to consult with individuals with visual, auditory, tactile, and cognitive disabilities or organizations representing these disability types (e.g., American Federation of the Blind, National Federation of the Blind, National Association of the Deaf, Arthritis Foundation, United Cerebral Palsy, The Arc, etc.) in testing the usability of their Level AA-compliant Web sites. Carriers may consult with any individuals and/or local, national, or international disability organizations whose input collectively can help them determine how effectively their accessible Web site addresses the functional limitations of people with visual, auditory, tactile, and cognitive disabilities. To the extent that individuals on a carrier’s disability advisory board represent these disability types, the carrier may consult with those individuals to satisfy the requirement. For disabilities of the types listed above that are not represented on their advisory boards, carriers will be obliged to consult with outside individuals or organizations representing those disability types.‡

While not controlling, the DOT’s discussion of website accessibility in the Final Rule provides valuable insight into what the DOJ’s technical standards may require for websites of public accommodations.  Covered entities that maintain public websites are encouraged to review the ADA accessibility of their website.  Before finalizing remediation plans, either internally or with the aid of a third party vendor, a public accommodation may want to consider the merits of end-user testing or third party consultation, as discussed by the DOT.

If you have any questions regarding ADA litigation, accessibility issues for public accommodations, or ADA website accessibility litigation, contact Alisa N. Carr.  Alisa is a Partner in Leech Tishman’s Litigation Practice Group and is based in the Pittsburgh office. Alisa can be reached at 412.261.1600 or acarr@leechtishman.com.

Leech Tishman’s Facebook Page: https://www.facebook.com/leechtishman

Leech Tishman’s Twitter: https://twitter.com/LeechTishman

Leech Tishman’s Company Page on LinkedIn: https://www.linkedin.com/company/leech-tishman

Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, health & safety, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York and Wilmington, DE.

† See https://www.transportation.gov/sites/dot.gov/files/docs/Kiosk-website-FR-final%20rule.pdf 
‡ Id. at p. 67890.