When the Americans with Disabilities Act (ADA) was enacted in 1990, computers used floppy disks and the “World Wide Web” was still being tested by scientists at CERN. So while the law’s drafters had a good sense of what access would look like in the physical world, they had no idea what sort of economic and social changes were in store with the birth of the Internet.

Fast forward to 2016, and the law is still murky as to disability access issues online. But that uncertainty has not stopped the plaintiffs’ bar from filing lawsuits claiming that websites are inaccessible to users with disabilities and thus violate the ADA.

Many disabled individuals access the Internet using assistive technologies. For example, blind individuals or those with low vision can use screen readers that read website content aloud for them. Websites that are incompatible with assistive technology can create barriers for users with disabilities and give rise to costly and uncertain litigation.

In December 2014, we issued a client alert that discussed the growing risk of litigation under the ADA and derivative state laws arising from websites or mobile apps that allegedly discriminate against disabled individuals. As we noted then, despite more than a decade of litigation, basic questions have remained muddled, including whether Title III of the ADA (which requires access to places of public accommodations for disabled individuals) applies to websites. Businesses were hoping for clarity in the form of proposed regulations by the Department of Justice (DOJ), which had been slated for March 2015. But more than a year after the fact, we are still waiting on regulations and uncertainty remains (although this has not stopped the groundswell of litigation, particularly in California).

Until recently, courts have generally held that Title III does not apply to online-only services because they do not have a nexus with any physical location. And while some courts have continued to uphold the nexus requirement, other recent decisions have held that certain websites were public accommodations subject to the ADA even though they had no physical place of public accommodation. This confusion has even led to the same business (Netflix) being subjected to different standards in different circuits (no “nexus” needed in the First Circuit, while nexus required in the Ninth Circuit). These different approaches have caused a split between circuits, meaning this question of whether Title III applies to online-only businesses may eventually be headed to the Supreme Court.

As we noted in our client alert, the DOJ looked ready to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA as the standard required for public accommodations for private/non-government websites.

But, in late 2015, the DOJ announced that it would not finalize regulations under Title III until fiscal year 2018 at the earliest. One reason for the delay was that the DOJ wanted to wait for similar guidelines for government agency and contractor websites under Title II of the ADA, which it stated would “facilitate the creation of an important infrastructure for web accessibility that will be very important” for Title III rulemaking. At that time, the DOJ expected the Title II guidelines to be finalized by the summer of 2016.

However, in April 2016, the DOJ pushed back the Title II process, seeking further input on questions about the scope of web content (e.g., mobile apps) that would be covered by the guidelines, as well as further questions on which WCAG standard to adopt. The public comment period for the proposed Title II rules remains open until August 8, 2016.

In the meantime, the plaintiffs’ bar is showing no signs of letting up. Some firms seem to be setting up a cottage industry in this area. As the Chicago Tribune reported, one law firm has sent 25 demand letters – just to companies in real estate and homebuilding. And in March 2016, a California state court became the first in the nation to rule that a retailer violated the ADA due to a website that is not accessible to individuals with vision-related disabilities. The judge in Davis v. BMI/BNB Travelware, no. CIVDS-1504682 (San Bernardino Superior) (Mar. 21, 2016) granted plaintiff’s motion for summary judgment, holding that the defendant luggage retailer violated the ADA and California’s Unruh Act. The judge ordered defendant to pay $4,000 in statutory damages and attorneys’ fees and to take steps necessary to make its website “readily accessible to and useable by individuals with visual impairments…” Troublingly, the court order did not include any details as to the standard by which accessibility/compliance would be measured.

So while this long process continues to unfold, businesses and organizations should take a close look at their websites to determine whether they meet WCAG 2.0 Level AA standards (which every indication from the DOJ has suggested will be the relevant standard).