Airline Fined for Separate Disabled-Accessible Website


Advertising Law
December 13, 2018
Jesse M. Brody

Offering a separate website for those with disabilities does not comply with the U.S. Department of Transportation’s (DOT) website accessibility requirements, the agency made clear with a $200,000 fine to the Scandinavian Airlines System (SAS).

The DOT established website accessibility requirements that require any U.S. or foreign air carrier that has a website and that operates at least one aircraft seating more than 60 passengers to ensure that its public-facing webpages on its primary website are accessible to individuals with disabilities. Set forth at 14 CFR Part 382, the rule had two phases of implementation.

By December 12, 2015, covered entities needed to ensure that core travel information and services on the airline’s primary website met the Web Content Accessibility Guidelines 2.0 Level AA Standard. Airlines had until December 12, 2016, to achieve compliance for all remaining webpages on the primary site.

But in February 2017, the DOT’s Office of Aviation Enforcement and Proceedings discovered that SAS’ primary website was not accessible to persons with disabilities. Instead, the airline created an “assistive version” of its primary website at a separate and distinct URL.

This separate site violated the DOT rule, the agency said.

“In the preamble to the rule the Department explained that to create a separate accessible website would ‘likely perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the second site,’” according to the DOT consent order with SAS. “The Department also stated that it is a ‘well-established principle of disability non-discrimination law that separate or different aids, benefits or services can only be provided to individuals with disabilities (or a class of such individuals) when necessary to provide aids, benefits or service that are as effective as those provided to others.’”

SAS’ failure to comply also constituted unfair and deceptive practices and an unfair method of competition, the agency said.

In response, SAS argued it “held a good faith belief” that the assistive version of its website was a conforming alternate version that brought its primary site into compliance, pointing the finger at a third-party vendor that “assured” the airline the alternative site met the requirements of the DOT rule. SAS no longer has an alternative separate website designed for individuals with disabilities, and its primary website is accessible.

The DOT Enforcement Office and SAS reached an agreement over the charges. While the airline did not admit to the violations asserted by the agency, it agreed to cease and desist from future similar violations and pay a compromise civil penalty of $200,000. Of the total amount, $100,000 was due immediately, with the remaining $100,000 due and payable if SAS violates the consent order within one year.

“This compromise assessment is appropriate considering the nature and extent of the violations described herein and serves the public interest,” according to the consent order. “It represents a strong deterrent to future similar unlawful practices by SAS and other carriers.”

To read the DOT’s consent order, visit https://www.regulations.gov/document?D=DOT-OST-2018-0001-0017 .

Why it matters

Website operators have struggled over the years with accessibility requirements, but the DOT consent order makes one thing very clear: A separate accessible website designed for individuals with disabilities is not an option

Original at https://www.manatt.com/Insights/Newsletters/Advertising-Law/Airline-Fined-for-Separate-Disabled-Accessible-Web



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