Americans are becoming more and more dependent on websites to meet their everyday needs.  Courts have observed a wave of advocacy groups and private citizens filing lawsuits challenging website accessibility for individuals with a disability under the Americans with Disabilities Act (“ADA”).  Companies, educational institutions and municipalities remain vulnerable to litigation threats and liability under the current landscape of the law.  In fact, businesses now regularly face demand letters from plaintiffs’ law firms, and hundreds have become defendants in website accessibility lawsuits since 2015.  Businesses from all sectors can be affected, including hotels, banks, retailers, service providers and more.

What is behind this surge?  In pertinent part, the ADA mandates that individuals with a disability receive “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”[1]  Websites are not specifically included as a place of public accommodation in the ADA, as the law’s roots trace back to 1990 – before the internet became omnipresent.  While new website-specific ADA regulations were scheduled to be issued in 2018, this rulemaking has now been placed on the 2017 Inactive Actions list by the Department of Justice (“DOJ”).  As a result, the legal landscape governing accessibility likely will remain in the hands of courts for the foreseeable future.

What is typically meant by “full and equal enjoyment” under the ADA can be illustrated with an example published by the DOJ.  According to the DOJ guidance, a website offering tax forms should be available in the same format, under the same terms to any individual—and without any increase in cost, delay or inconvenience to an individual with a disability.  As such, a telephone line accessible to individuals with a disability, facilitating the mailing of tax forms does not provide equal access because of the increased delay between instant access online and receiving the same form in the mail.[2]  Other common accessibility issues with websites often include the following: the inability to increase the size of text, site mobility limited to the use of a mouse, color combinations limiting the readability of text, and incorrectly captioned videos.

While website inaccessibility lawsuits tend to settle well before trial, one federal court in Florida issued a ruling in June, 2017.[3]  In that case, the plaintiff was legally blind and relied upon screen reader software when viewing web content on his computer.  Winn-Dixie, the defendant, operated a website that was not compatible with plaintiff’s software.  Further, the website failed to have other key functions on the website to accommodate visually impaired users.  In defense, Winn-Dixie argued that its website is not a place of public accommodation under the ADA.  In its ruling, the court noted, “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations,”[4] it is likely that the ADA will be triggered.  In this case, the plaintiff was unable to use the defendant’s website to order prescriptions online.  The court based its ruling on the nexus between the website and equal access to goods and services offered at Winn-Dixie stores.  It is unclear how the term “nexus” will be interpreted in future rulings, as there is a split in rulings amongst the Circuits.  However, in the Second Circuit, it appears clear that an organization’s website may be considered a place of public accommodation, even if there is not a brick and mortar presence.

Liability may also extend under state law, even if the ADA does not apply.  For example, a pending matter in a federal court based in New York is hearing website accessibility claims under both the ADA and the New York State Human Rights Law (“NYSHRL”).[5]  When interpreting the NYSHRL, that court noted a plausible claim did exist because the law “must be liberally construed” and the term “place of public accommodation” is not limited to physical real estate. [6]

Without clear guidance from the DOJ and with the presence of varied decisions from district courts, it is often advisable to rely on the Web Content Accessibility Guidelines 2.0—a commonly accepted standard relied upon in the industry and by federal courts.  These guidelines are designed to accommodate individuals with a disability including those with “blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, [or] photosensitivity.”[7]

The Web Content Accessibility Guidelines 2.0 are divided into four themes: perceivable, operable, understandable and robust enhancements.[8]  First, perceivable enhancements include: text alternatives to accommodate large print, braille and simple language; alternatives for time-based media; simplified content layout; and the ability for users to easily see and hear content (i.e. color or audio control).  Second, operable enhancements include: keyboard functionality; enough time to read and use content; avoiding design that could cause seizures; and an easily navigable site.  Third, understandable enhancements encompass: text being readable and easily understandable; predictable website functions and operation; and the ability for users to avoid and correct mistakes when visiting a site.  Lastly, robust enhancements include the ability for the site to be compatible with current and future software and other assistive technologies used by individuals with a disability.

Some organizations’ websites feature website accessibility statements offering that reasonable accommodations will be made to individuals with known disabilities, that it is the intent of the organization to use best practices to accommodate, and that any issues should be submitted to the web administrator.  However, it is important to note that such warnings may simply be insufficient.

Organizations should evaluate the benefits and costs of bringing websites into compliance with the Web Content Accessibility Guidelines 2.0 standards, and balance that against the possibility of potential legal action for non-compliance. The interplay of a website and each organization’s needs and structure will vary.  Organizations are encouraged to consult their website administrators and designers along with legal counsel to increase compliance and reduce potential legal exposure.  Lastly, it is also important to note that “accessibility is a continuing obligation,” requiring ongoing attention to website accessibility issues.