Special districts are independent, governmental agencies or entities established to deliver specialized services to the community, including health, safety, and well-being. Think fire departments, sewer/water districts, and parks departments.
Often special districts use private, outside companies to manage parts of the special district’s operations, such as hosting and maintenance of websites. Under Title II of the ADA, public sector websites are required to be accessible for persons with disabilities. Most commonly, this requires that the website be coded properly to be compatible with screen reader software, which enables blind users who rely on that software to listen to, use and navigate the website.
Disabled plaintiffs can, and often do, file lawsuits against public sector entities for violation of the ADA when websites or other elements are not accessible. Penalties for noncompliance can be severe. Typically, an ADA plaintiff will seek injunctive relief (a court order requiring compliance), attorneys’ fees, and in some states (including California and New York) statutory damages. In California, for example, statutory damages of $4,000 per occurrence can add up quickly. Large class action lawsuits can reach into the millions.
While many government agencies have learned this the hard way, companies that manage parts of special district operations might find themselves indirectly liable for ADA claims and lawsuits due to the agreement in place between the management company and the special district. Typically, such agreements will contain provisions that make the management company responsible for the costs of ADA claims against the special district. Some of these provisions include the following:
- Compliance with law: This provision requires the management company to comply with all laws in the performance of its duties under the contract, including (either explicitly or implicitly) compliance with the ADA in the management of the website.
- Maintenance of property: This provision requires the management company to maintain the property it oversees, such as the website, in good condition and repair, free of protracted server failures and dysfunction in the operation of the site. ADA compliance generally falls into this category.
- Indemnification: This provision makes the management company responsible for covering the costs of any and all claims, fees, penalties, or expenses of any kind suffered by the special district arising out of the failures of the management company to perform its duties, including ADA compliance.
What should special districts do?
Special districts should review their contracts with management companies to ensure they have protections in place. The provisions cited above, or substantially similar provisions, should be included in the contracts with management companies to protect them from those companies’ failings. Special districts should also vet their vendors, including management companies, to ensure those companies are familiar with ADA compliance, particularly the relatively new area of website accessibility. How does the management company ensure ADA compliance? Are regular reports provided regarding compliance with the ADA website standards?
What should management companies do?
At the same time, management companies should actively adopt measures to ensure compliance with the contract terms, including all the ADA and other rules and regulations. Are regular audits performed on the website for compliance with the WCAG standards? Has a compliance officer been designated to spearhead these efforts? Can the public use the website to submit a request for accommodation?
Some new compliance-as-a-service firms are building this into their product and offering legal protection for the district if a claim is pursued against it. For example, see Streamline.
One thing is for sure – ADA compliance is here to stay and should be a consideration in risk reduction for special districts and the companies that help manage them.