The Americans With Disabilities Act prohibits discrimination “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.” Over the past few years, innumerable lawsuits have been brought against universities, banks, and businesses, claiming that they have engaged in unlawful discrimination under the ADA because their websites (1) act as “places of public accommodation,” and (2) are not fully accessible to people with visual impairments. (Often, these lawsuits concern the fact that, although a visually impaired person can use a “screen-reader” to convert text on a website into audio, if there is no subtitle to a non-text picture or image, that user would have no way of knowing that a picture or image exists, let alone what it might be.)
While there have been cases holding that websites are not places of public accommodation, the trend seems to be otherwise. Some jurisdictions hold that a website may be a place of public accommodation if there is a connection between the site and a physical location. See, e.g., Earll v. eBay, Inc. (ruling that eBay’s website was not a place of public accommodation “[b]ecause eBay’s services were not connected to any ‘actual, physical place….’”). Others, however, have held that a website may be a place of public accommodation, even if not tied to a physical location. See, e.g., Nat’l Ass’n of the Deaf v. Netflix, Inc. (holding that the Netflix website was a place of public accommodation because it is a “service establishment,” a “place of exhibition or entertainment,” and/or is a “rental establishment”).
Just last year, Winn-Dixie Supermarkets lost a trial and, as a result, was ordered to make its website more accessible to visually impaired individuals and pay the plaintiff’s reasonable attorneys’ fees. While Winn-Dixie is appealing, this ruling plainly has fueled the fires of both opportunistic and evangelistic plaintiffs.
So what can you do to ensure that you are not hit with one of these lawsuits? While the Department of Justice said in 2015 that it was going to promulgate regulations in this regard, it later reversed course and has declined to do so. Nevertheless, the World Wide Web Consortium, which bills itself as an international community to develop web standards, has developed a series of guidelines (known as WCAG 2.0) to which courts have been looking to determine if a website is ADA compliant. Unfortunately, however, there are three levels of WCAG guidelines (A, AA and AAA), and it is unclear what an entity has to do to know that it is safe. Indeed, in the Winn-Dixie case, the court merely said that the supermarket had to comply with the “WCAG criteria.” Thus, anyone seeking to comply is going to have to make some tough judgment calls and balance them against the cost of implementation.
Nevertheless, any business that thinks it might be a place of public accommodation is well-advised to have its website evaluated for compliance with the WCAG standards and consider the costs of upgrading. The last thing you want is to be sued for non-compliance and then have to react on short notice.