Steven Becker, a partner in the Vorys Washington, D.C. office, authored a column titled “The Coming Tide Of Website Disability Claims Under ADA” for the October 1, 2014 edition of Employment Law360.  In the article, Becker says that additional federal enforcement efforts and the expansion of website marketing functions has allowed website Americans with Disabilities Act (ADA) discrimination cases to be brought.  The full text of the article is included below.


Ever since the enactment of the Americans with Disabilities Act, much of the focus of litigation and enforcement efforts has been with respect to physical structures and barriers that discriminate against individuals with disabilities. Very few cases have been brought asserting that a company’s website discriminates against disabled individuals. However, a confluence of burgeoning federal enforcement efforts, an evolution of ADA case law and the expansion of website marketing functions is opening the door for more website discrimination cases to be brought.

The technology exists to make websites more easily navigable by disabled people. For example, “alternative text” coding allows screen readers to aurally describe images on a webpage. Captioning permits deaf users to read verbal content. And, in some cases, speech recognition capabilities may aid those who can’t manually type in data or information. The World Wide Web Consortium has developed cross-disability coding standards known as the Web Content Accessibility Guidelines 2.0, which permit greater access to website functions and features for the disabled.

Federal enforcement efforts for website ADA violations are slowly shifting into gear. The U.S. Department of Justice is preparing proposed regulations “to expressly address the obligations of public accommodations to make the websites they use to provide their goods and services to the public accessible to and usable by individuals with disabilities under the legal framework established by the ADA.” Notably, one of the DOJ's stated reasons for doing so is that there have been inconsistent court decisions interpreting the applicability of the ADA to private sector websites. The proposed regulations have been in the works for several years and are now delayed until March 2015. However, that does not mean that the DOJ has been lying dormant. The department and certain state agencies have been increasingly active in prosecuting and enforcing website accessibility claims against private businesses and local governments.

Additionally, the case law under the ADA is developing in a way that will make more companies’ websites subject to public accommodation disability claims. The cases adopt two different interpretations of the ADA and its applicability to websites. One line holds that a “place of public accommodation” under the ADA must be an actual, physical place where goods or services are open to the public, or a place where the public gets those goods or services. Under this line of cases, in order to establish discrimination in a public accommodation’s offerings, there must be “some connection between the good or service complained of and an actual physical place.” Consequently, many cases alleging ADA website discrimination claims were dismissed, because websites are not physical spaces and the websites’ offerings did not affect access to or the goods and services offered in a physical place of accommodation.

The other line of cases holds that “places of public accommodation” under the ADA are not limited to actual physical structures. Deriving from the First Circuit’s Carparts opinion, these cases note that, although web-based services did not exist when the ADA was passed in 1990, the legislative history evinces a congressional intent to have the statute applied to adapt to changes in technology. Thus, in order to establish that a website constitutes a place of public accommodation under the Carparts theory, the plaintiff merely needed to show that the purpose of the website fell within the general categories of public accommodations covered by the ADA, such as a “service establishment,” a “rental establishment,” or a “place of exhibition or entertainment.” Many businesses’ websites satisfy these criteria.

Consequently, businesses with a super-regional or national presence are at risk for being subject to ADA lawsuits. If a plaintiff can establish venue over a website owner in a jurisdiction that applies the Carparts theory, a nationwide injunction may be obtained requiring the offending website to be altered or modified to be handicap accessible.

However, even businesses that operate only in jurisdictions where the physical-place test is applied need to be wary of being subject to an ADA website discrimination claim. That is because the line between the physical-place test and the Carparts theory is becoming blurred as a result of the expansion of website functions and offerings. For example, retailers’ websites now offer the means to order online for pick-up at the store. Restaurants offer reservations online. Movie theaters’ websites offer ticket reservations or printing for use at the theater. In each of these instances, the case may be made that the website constitutes a public accommodation under the ADA because there is a connection between the good or service complained of and an actual physical space. The decision in National Federation of the Blind v. Target Corp. bears out this point.

Target Corp.'s website was accused of discriminating against the blind by denying them full and equal access to Target stores, as well as to the goods, services and benefits offered through the website. The website lacked alternative text code that would permit blind users to more easily navigate through the site. The case was filed in a jurisdiction that followed the physical-space test, so Target moved to dismiss the complaint on the ground that the alleged deficiencies with the website did not deny blind customers access to Target’s physical stores.

The court concluded otherwise, finding that many of the benefits and privileges of the website constituted services of Target’s physical stores. In the court’s opinion, Target’s website was “heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores,” “an extension of its stores, as part of its overall integrated merchandising efforts” and a “means to gain access to the store.” The court held that “the inaccessibility of denies the blind the ability to enjoy the services of Target stores.”

However, the only facts alleged to establish a nexus between the website and Target’s physical stores were that customers could: (1) purchase online many of the items available in the stores; (2) access information on stores’ locations and hours; (3) refill a prescription or order photo prints for pick-up at a store; and (4) print coupons redeemable at a store. These are standard merchandising and marketing tools. There was nothing about the website that adversely affected an individual’s ability to access Target’s stores, nor did it prevent the disabled from equal enjoyment of the services offered in the stores once they were there. Thus, Target blurs the line between the physical-space and Carparts theories, because nearly every retailer’s, hotel’s, rental agency’s and food establishment’s website is an extension of the company’s overall merchandising efforts.

Target and the DOJ's proposed rulemaking evince a movement toward requiring private sector websites to be ADA-compliant. If nothing else, the ongoing evolution of website marketing to incorporate Internet-to-outlet merchandising may render the physical-place test obsolete as a practical matter. Private sector retail website operators should be aware and beware of these developments and be prepared to develop accessible websites.