ESRA Recommendation: The ADA and Electronic Signatures

Title III of the ADA (42 U.S.C.A. § 12182) prohibits discrimination based on a disability from “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.”

Consumer website accessibility

The DOJ website accessibility regulations for private entities are expected to be published in 2019 or thereafter. However, in the DOJ’s Advance Notice of Proposed Rulemaking (ANPRM) the DOJ points to the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG) 2.0 as the standard entities should adopt for website compliance. More specifically, the DOJ states that entities must achieve at least level AA conformance levels.

In the meantime, there is no solid case law or regulation that states whether or not a cloud-based business is considered a place of public accommodation, but courts have included pubic websites in the definition , particularly where there is a nexus between the website and a brick-and-mortar location. In a highly publicized 2017 federal district court case, a retailer was found to have discriminated against a blind customer for not accommodating a screen reader for online prescription ordering.

Online signature services

To the extent consumers will be engaging electronically with entities over the web, their receipt of electronic disclosures and execution of online agreements may be governed by the DOJ website accessibility regulations. Ahead of DOJ’s release of a Final Rule, ESRA recommends that SaaS or cloud-based e-signature service providers:

  • assume that the final regulations will be applicable to some, if not all, of online consumer transactions;
  • proactively add accessibility tools to public-facing signature software interfaces, including an easy method for consumers to call the provider if they are having difficulty accessing the needed features of the software;
  • expect to make further updates to the online consumer experience to accommodate specific rules provided in the final regulations.

You can read the entire recommendation, including all citings, here.