By Abtin Mehdizadegan
You installed wheelchair ramps in offices; your doorways are at least thirty-two inches wide; you have braille printed on signs; and you have taken all of the steps necessary to provide physical access to your business for disabled employees, clients, or visitors. You believe that your business is fully compliant with the Americans with Disabilities Act’s (ADA) accessibility regulations. But what about your website—is it accessible to individuals with disabilities?
Scores of businesses in the medical, financial, and retail industries have been forced to answer this question in response to demand letters and lawsuits that allege their websites present barriers to access by individuals with disabilities, in violation of the ADA. Specifically, plaintiffs’ firms across the country are crawling the web for unsuspecting businesses with websites that fail to meet standards set forth in the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG 2.0 AA), because these websites—when used to facilitate access to a company’s goods and services—may violate Title III of the ADA—or so they claim.
This Article analyzes the application of Title III of the ADA to websites of public accommodations and discusses the unsettled state of the law.
“PLACES” OF PUBLIC ACCOMMODATION
The ADA was enacted in 1990 to provide a clear and comprehensive national mandate for the removal of barriers to employment, transportation, public services, communities, and telecommunications, for individuals with disabilities. Title III of the ADA prohibits discrimination by private entities in places (i.e., physical locations) of public accommodation, to wit:
“No individual shall be discriminated against on the basis of disability in 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 leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). The ADA specifically identifies 12 categories of “places of public accommodation,” all of which are physical, real (not virtual) locations: (1) places of lodging; (2) establishments serving food or drink; (3) places of exhibition or entertainment; (4) places of public gathering; (5) grocery stores, shopping centers or other sales or rental establishments; (6) laundromats, dry cleaners, banks, or other service establishments; (7) specified public transportation terminals; (8) places of public display or collection; (9) parks and zoos; (10) schools; (11) day care centers; and (12) places of exercise or recreation. Similarly, the applicable federal regulations define a “place of public accommodation” as “a facility operated by a private entity whose operations affect commerce and fall within at least one” of 12 specified categories set forth in 42 U.S.C. § 12181(7). 28 C.F.R. § 36.104. A “facility” is defined as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real and personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104.
Upon this brick and mortar foundation, courts have expressly recognized that this list provides a “comprehensive” definition of “public accommodation” in a comprehensive and non-illustrative manner. As such, it would seemingly follow that a website does not come within the ambit of Title III’s protection. Unfortunately, the issue is not so simple. In fact, since 2015, at least 240 lawsuits were filed in federal courts across the country testing this very issue.
There are two primary theories used to support the position that Title III’s accessibility requirements apply to websites: (1) the website itself is a place of public accommodation; or (2) the website is one of the goods, service, facilities, privileges, advantages, or accommodations of a place of public accommodation that must be accessible. Under the first line of cases, which were the earliest decisions on the matter, courts held that the ADA only applies to physical locations—not websites. Under the second line of cases, courts have attempted to apply the ADA’s brick-and-mortar regulations to virtual places like websites, by suggesting that websites must be “accessible” if there is a nexus between the website and a physical, concrete place of public accommodation. A few errant decisions have even gone a step farther and have applied the ADA in a manner that would require all commercial websites to be accessible, even if there is no connection to a physical place.
For instance, in National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 (D. Vt. 2015), a disability advocates group sued Scribd Inc., a digital library, alleging that its reading subscription services website and mobile applications were inaccessible to the blind in violation of the ADA. Scribd moved to dismiss, arguing, among other things, that as a website that did not have a brick-and-mortar store, it was not required to comply with the ADA. The U.S. District Court for the District of Vermont held, as a matter of first impression, that websites and mobile applications were places of public accommodation under Title III of the ADA. The Scribd court reasoned that the plain language of 42 U.S.C. § 12187(7) was ambiguous and, in light of the ADA’s purpose—“to end widespread discrimination against disabled individuals”—all commercial websites must comply with the rules and regulations of the ADA.
WHICH STANDARDS APPLY?
Following Scribd, many Human Resources Departments—risk averse by nature—may be asking the next relevant question: what rules and regulations apply to websites under the ADA? Unfortunately, there is no conclusive answer to this question. Recognizing that significant commercial activities were migrating to the Internet, the Department of Justice (DOJ), which enforces Title III of the ADA, has taken the position that websites operated by businesses in the private sector are subject to Title III’s general accessibility requirements. The general mandate to maintain accessible places of accommodation, however, is vague when applied in a virtual, online environment. To clarify that vagueness, DOJ began the rulemaking process to clarify this issue in July 2010. The Agency, however, repeatedly delayed issuing a proposed rule and, most recently, deferred the rulemaking process until 2018.
Although the DOJ has not promulgated any regulation that specifically requires private sector businesses to meet certain standards, it has endorsed the WCAG 2.0 guidelines in various amicus briefs and in its position papers. The official WCAG 2.0 guidelines, organized under the following four principles, cover a wide range of recommendations for making content more accessible:
Perceivable – Information and user interface components must be presentable to users in ways they can perceive.
Information and user interface components must be presentable to users in ways they can perceive.
Time-based Media: Provide alternatives for time-based media.
Create content that can be presented in different ways (for example simpler layout) without losing information or structure.
Make it easier for users to see and hear content including separating foreground from background.
Operable – User interface components and navigation must be operable.
Make all functionality available from a keyboard.
Provide users enough time to read and use content.
Do not design content in a way that is known to cause seizures.
Provide ways to help users navigate, find content, and determine where they are.
Understandable – Information and the operation of user interface must be understandable.
Make text content readable and understandable.
Make Web pages appear and operate in predictable ways.
Help users avoid and correct mistakes.
Robust – Content must be robust enough such that it can be interpreted reliably by a wide variety of assistive technologies.
Depending on a business’s level of compliance with these four principles, websites are rated as A, AA, and AAA—with AAA being the highest level of accessibility available. Again, however, there is no specific regulation that requires compliance with any level of the WCAG 2.0. Federal contractors, like banks, for example, should note, however, that the Office of Federal Contract Compliance Programs has endorsed WCAG 2.0 in regulatory footnote regarding affirmative action under Section 503 of the Rehabilitation Act. See 41 C.F.R. § 60-741.44, n. 1.
ADOPTING AN ACCESSIBILITY PARADIGM
Against this backdrop, and as ADA website accessibility lawsuits gain more popularity within the plaintiffs’ bar, smart risk management principles should guide businesses to weigh the costs of compliance against the potential for liability. Plaintiffs’ attorneys are testing the viability of ADA accessibility claims with impunity and employers need to take steps now to understand what, if anything, they need to do to protect themselves while the legal and regulatory framework develops over the next several years.
Specifically, to avoid allowing websites to develop into dormant liabilities, businesses should plan to accomplish some level of accessibility for their websites within the next year. An effective approach to this issue involves engaging legal counsel and seasoned web developers to conduct a privileged accessibility audit. Representatives from IT, HR, and Marketing should be also be a part of the audit team and actively participate in reviewing any audit findings. Various “accessibility” reviewing platforms, such as http://wave.webaim.org, are available for free on the Internet and may be a good place to start. Once errors are identified and corrected, policies should be established to maintain websites in an accessible form.
Without question, ADA website accessibility lawsuits, which provide plaintiffs’ attorneys with a steady stream of statutory attorneys’ fees, will continue to rise in popularity. Taking steps now to avoid liability may be the difference in your bottom line for 2017. If you have been contacted by one of the plaintiffs’ firms trolling for these lawsuits, contact experienced counsel immediately to prepare a defense.