A growing area of class action litigation is the Americans with Disabilities Act (“ADA”) website compliance, particularly for e-commerce sites. The ADA, 42 U.S.C. § 12101 et seq., provides that "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). Plaintiffs allege that this provision applies not only to a brick and mortar retail establishment, but also to websites, so long as a plaintiff can establish: (1) the plaintiff is disabled; (2) the website is a place of public accommodation; and (3) the structure of the website does not allow full and equal enjoyment of goods and services.

While the first prong is often satisfied by a class of plaintiffs, the second prong, whether the website is a place of public accommodation, has been heavily litigated in the past. The general view is that the ADA applies where there is a “nexus” between the use of the website and enjoyment of the goods and services offered at a retailer’s brick and mortar store. This nexus could include the ability for the consumer to purchase goods, but could also include such matters as the hours of operation. Of course, for entirely web-based operations, there is no "nexus" and there is no brick and mortar store, but the United States Department of Justice (“DOJ”) has not found that an impediment to pursuing actions against entirely web-based ventures. And, while the third prong is going to be specific to the class of plaintiffs and the website, plaintiffs allege that this prong is satisfied if the website fails to allow visually impaired consumers to use “screen reader” software or otherwise conform the site for use in modified formats.

Retailers, banks, universities, restaurants and other places of public accommodation that operate websites are the most common targets in these class action lawsuits. The ADA, however, does not contain a clear set of technical requirements for websites. The DOJ has, through its Advanced Notice of Proposed Rulemaking (ANPRM) relating to Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, indicated that it sees the Web Content Accessibility Guidelines ("WCAG") A and AA requirements as logical requirements for the web-based portions of services for organizations covered under the ADA.

WCAG 2.0 is a stable technical standard that has 12 guidelines organized under 4 principles: perceivable, operable, understandable, and robust. For each guideline, there are testable success criteria at three levels: A, AA, and AAA. Many commentators believe that compliance with the AA level of WCAG should be sufficient to “comply” with the ADA, unless and until some sort of policy or technical specifications are promulgated either by an agency or the courts. The DOJ announced last fall that its rule-making on web accessibility under the ADA will be delayed until fiscal year 2018, leaving website operators to follow WCAG in hopes that they will be sufficient. The lack of rulemaking, however, has not stopped the DOJ from pursuing actions against websites it finds to have violated the ADA, such as its November 2014 settlement against a nationally recognized online grocery store. This settlement required the grocer to adopt measures ensuring that users with disabilities could fully and equally enjoy the goods and services of the site, including ensuring that the website and its mobile applications conform to, at minimum, the WCAG 2.0 AA, except for certain third party content; designate an employee as web accessibility coordinator for the site, who will report directly to company executives; retain an independent website accessibility consultant, who will annually evaluate the accessibility of the website and its mobile applications; and adopt a formal web accessibility policy, among other requirements.

Class action lawsuits against e-commerce sites for violations of the ADA are becoming more common. Last fall, an international shoemaker was sued in New York by a proposed nationwide class of visually impaired plaintiffs for failing to make its site compatible with screen reader software. While e-commerce sites appear to be the primary defendants in these cases, the ADA compliance of any website of a brick and mortar public accommodation, such as a restaurant or a hospital, could be the subject of a lawsuit as well. Any web retailer, or other public accommodation concerned about this issue, should first speak with their lawyers to determine whether or not they would be considered a place of public accommodation. Also, review your website, with the assistance of an ADA consultant, to determine accessibility and discuss and implement any necessary changes to the site.