ADA Compliance and Consent Considerations

The Americans with Disabilities Act (ADA) passed in 1990 to end discrimination against individuals with disabilities. Later, in 2010, the United States Department of Justice (DOJ) released specific guidelines to ensure computer and smartphone accessibility for disabled people. In today’s digital age, websites have become integral to everyday life. While they serve as crucial platforms for communication and information dissemination, not everyone can easily navigate these digital spaces as individuals with disabilities often encounter barriers that hinder their online experience. Although many people often associate ADA compliance with physical things, such as ensuring individuals have access to public spaces, the requirements also take things like website and online compliance into account.

Website accessibility compliance standards are composed of four main principles: perceivable, operable, understandable, and robust. Though many of these basic building blocks of an accessible website include things like providing text alternatives for non-text content (such as pictures) or ensuring font colors are readable, an incredibly important aspect that many organizations have failed to consider is express written consent.

Express Written Consent

When an individual provides their express written consent, the Telephone Consumer Protection Act (TCPA) requires that they do so by making an affirmative action after being provided the proper disclosure language. Unfortunately, many websites do not allow for this consent language or overall lead (inquiry) forms to be submitted in such a manner, specifically for individuals with disabilities. For example, an individual with a visual impairment may not have access to the disclosure language, or the language may not be in a legible font or text.

Notably, under the “perceivable” principle of website accessibility, information, and user interface components are supposed to be presented in a manner in which all users can perceive and cannot be invisible to all of their senses. If an individual cannot be provided with the express written consent language and the ability to take affirmative action in an accessible manner, then they may unknowingly consent to receive marketing calls or texts from a company without realizing it. Should an organization contact this individual under the guise that they have valid express written consent, they are putting themselves at risk.

In many instances, organizations may not even be aware of the fact that they are not compliant with ADA requirements. Often times standards are not met unintentionally; however, accessibility-related lawsuits are skyrocketing and professional plaintiffs are going after organizations that are unknowingly out of compliance. Not only could that result in an expensive lawsuit, but organizations may also face legal fees, possible settlement costs, potential public relations problems, and other costs associated with making websites ADA-compliant.

While professional plaintiffs are on the rise in the ADA arena, many people are acting because they are not provided access to websites and the online world as they should be. Ensuring your company and website are ADA compliant is not only an important legal requirement but allows all individuals access to the online and digital world. With website accessibility lawsuits on the rise, it is more important than ever to ensure your organization is always obtaining valid express written consent in a manner that is also ADA-compliant. If you’d like to discuss ADA compliance with us or need help reviewing your current status, please reach out to connect@compliancepoint.com.