- Lawsuits alleging violations of the ADA for websites inaccessible to the blind are on the rise—with approximately 250 filed in the last year.
- The ADA prohibits discrimination against the disabled in “places of public accommodation” including some websites.
- ADA lawsuits can be costly to businesses and guidance on ADA compliance is still years away.
An increasing number of class action lawsuits have been filed over the past year against private companies by individuals alleging violations of the Americans with Disabilities Act (ADA) for failure to maintain websites that are accessible to the blind and visually impaired. In 2016 alone, approximately 250 lawsuits were filed by a handful of plaintiffs’ firms against companies in the retail, hospitality, and financial services industries alleging ADA violations related to website accessibility. Most of these suits have resulted in settlements that, in addition to the payment of some amount of financial remuneration to the plaintiffs, require companies to make their websites ADA compliant. The steady shift in our economy from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. Given the increasing number of website accessibility suits, it is important for any company that maintains a web presence that constitutes a “place of public accommodation” to understand the requirements of the ADA.
ADA PRACTICE TIPS
• The ADA prohibits discrimination against disabled individuals in “places of public accommodation.”
• Websites have been interpreted to be “places of public accommodation” for purposes of the ADA.
• A circuit court split has developed as to whether a connection must exist between the website and a physical storefront for a website to be a “place of public accommodation.”
• Websites inaccessible to the blind or visually impaired may violate the ADA.
Title III of the ADA, which was enacted in 1990, prohibits discrimination against the disabled, which includes the blind and visually impaired, in places of public accommodation:
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). Although Title III of the ADA does not provide civil penalties for violations of the act, it does permit private rights of action and allows individuals to bring enforcement actions, seek injunctive relief, and recover costs and attorney’s fees. 42 U.S.C. § 12188.
As originally enacted, the ADA did not expressly include websites as places of “public accommodation,” principally because the internet was in its infancy at the time. Over the past several decades, however, as the internet has become ubiquitous and a seemingly unlimited number of goods and services have been made available online, courts have interpreted places of “public accommodation” to include websites. The interpretations have varied among courts resulting in a circuit split regarding whether a website must have a nexus with a “physical place of public accommodation” to fall within the scope of the ADA.
According to the Seventh Circuit, a nexus is not required, and websites without connections to physical commercial entities are nevertheless “places of public accommodation” for purposes of the ADA. As Chief Judge Richard Posner has reasoned. “An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store.” Morgan v. Joint Administration Board, 268 F.3d 456, 459 (7th Cir. 2001).
By contrast, the usually liberal Ninth Circuit has adopted a more restrictive definition of “place of public accommodation” requiring a nexus between the website and the service of a physical “place of public accommodation” like a brickand-mortar store. See, e.g., National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) (citing Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000)). Even employing the more restrictive definition, however, a website inaccessible to visually impaired individuals may still violate the ADA if the website provides unequal access to the “services” that may be available at a physical location. For example, a website allowing a customer to order delivery from a local restaurant could be in violation of the ADA if the site is inaccessible to the blind or visually impaired. In that situation the “nexus” between the challenged service and the physical place of public accommodation would make the website subject to the ADA.
This circuit split also has created an ambiguity concerning the scope of the ADA and its application to businesses based outside the United States. Under the Ninth Circuit’s interpretation, a nexus with a brick-and-mortar location is required, limiting applicability to businesses with a physical presence in the United States. The Seventh Circuit’s interpretation, however, does not require a nexus with a physical location allowing for application of the ADA to businesses with a web presence only. Businesses based outside the United States that offer goods and services to US consumers via a website could, therefore, be subject to the ADA.
Blind and visually impaired individuals use specialized software, including screen reader technology that reads website content aloud to users allowing them to access and navigate websites. Private lawsuits and enforcement actions undertaken by the Department of Justice have highlighted that not all publicly available websites are ADA compliant because they, among other things, fail to incorporate screen reader technology. Even websites that may have been designed initially to be compatible with screen reader software may become inaccessible when new features are added or the website is updated.
Additionally, many sites that are otherwise technically accessible to disabled individuals may not meet generally recognized accessibility standards. For example, compliance with the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG 2.0) are considered by many groups to be the true means of ensuring website accessibility. The US Department of Justice has indicated an intention to adopt WCAG 2.0 as part of future rulemaking, and includes upgrades to WCAG 2.0 compliance as a standard term in enforcement action settlements. Department of Justice technical guidelines concerning how websites should comply with the ADA, expected to require WCAG 2.0 compliance, have been delayed until 2018. Despite the lack of formal guidance, plaintiffs have attempted to use non-compliance with WCAG 2.0, regardless of actual inaccessibility, as a basis for private ADA actions.
The lack of guidance on website compliance and the relative ease in identifying inaccessible sites has led to the proliferation of class action enforcement suits on the part of private individuals. In 2016 alone, multiple lawsuits have been filed including, but not limited to, suits against Domino’s Pizza, Potbelly Sandwich Works, Reebok, Panera Bread, and AMC Theatres, alleging that some or all of the companies’ websites are inaccessible to the blind. These companies represent a small fraction of the approximately 250 companies that have faced website accessibility lawsuits over the past year. These suits, driven in large part by the relatively quick and easy settlements that plaintiffs’ counsel have been able to obtain, expose companies to damages, potentially costly litigation, and injunctive actions and are red flags to Department of Justice officials tasked with enforcing the ADA. While these suits have largely focused on companies offering consumer goods and as these websites are brought into compliance, plaintiffs have expanded their scope to target telecommunication providers and financial service companies.
The large number of ADA website accessibility lawsuits recently filed illustrates the potential risks that any company offering “a place of public accommodation” online faces. The steady source of attorneys’ fees these suits provide to plaintiffs’ counsel and the relative ease with which allegedly offending sites can be identified makes it likely that these actions will continue to be filed. As large companies bring their sites into compliance, either voluntarily or following legal action, plaintiffs may begin to focus on smaller online retailers or mobile applications. Accordingly, it is important to understand the need for ADA compliance and the pitfalls posed by non-compliance in an effort to limit the risk of potential litigation.