In a significant decision for all businesses that maintain an online presence, a California court recently ruled that a luggage retailer violated the Americans with Disabilities Act (“ADA”) and California state law by failing to make its website accessible to a blind customer. This summary judgment decision is noteworthy because in addition to holding that the retailer’s website is subject to accessibility obligations under Title III of the ADA, the court also required the retailer to take specific affirmative steps to modify its website to achieve compliance. Title III covers public accommodations including, but not limited to, retailers, restaurants, hotels, theaters and entertainment venues, medical offices, and other service establishments.
In Davis v. BMI/BND Travelware, the California Superior Court granted summary judgment in favor of the plaintiff, a blind customer who alleged that the retailer’s website, ColoradoBaggage.com, posed “pervasive” accessibility issues for users with visual impairments. Individuals with visual impairments can utilize technology, such as screen reader programs, to allow them to access online content, but that access is dependent upon websites being properly designed to be compatible with this software. Examples of design issues that may cause programs for screen reader software include a lack of text descriptions associated with linked images and missing labels for forms intended to be completed by a user.
The Davis court held that the customer “presented sufficient evidence and legal argument to conclude Title III of the ADA applies to plaintiff’s use of a website” because the customer “demonstrated a sufficient nexus exists between defendant’s retail store and its website that directly affects plaintiff’s ability to access goods and services.” The court further found that the customer “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant because of his disability.”
As a result, in addition to ordering the retailer to pay $4,000 in statutory damages under state law, the court granted the customer’s request for injunctive relief and required the retailer “to take steps necessary to make ColoradoBaggage.com readily accessible to and usable by visually impaired individuals or to terminate the website.” With regard to what steps the retailer must take to satisfy its accessibility obligations, the court ordered that the retailer conform its website to standards set forth in the customer’s expert accessibility report, noting that the retailer had not offered any opposition to demonstrate that those modifications would not be feasible.
The Davis decision is notable given that the court addressed the issue of Title III liability for website inaccessibility at the summary judgment stage and ordered the entity to make substantive accessibility modifications as a result. A number of courts have previously held that Title III accessibility obligations may apply to websites maintained by public accommodations, though there remains a split across courts on the issue and cases commonly settle prior to a final ruling. Nevertheless, public accommodations have long been the target of demand letters, investigations, and lawsuits by both private advocacy groups and the U.S. Department of Justice (“DOJ”) based on web inaccessibility and have entered into numerous settlement agreements and consent decrees under which they have agreed to make substantive accessibility modifications to their websites and mobile applications.
The legal landscape is further muddied by the fact that the DOJ has repeatedly delayed the release of proposed regulations governing the accessibility of online content for places of public accommodation under Title III, leaving businesses with no formal guidance on exactly what standards are required to achieve accessibility under the ADA. However, while the anticipated regulations will ultimately set the official standard for web accessibility, it is widely assumed, based both on the DOJ’s July 2010 Advance Notice of Proposed Rulemaking on the subject, as well as more recent DOJ settlement agreements, that the regulations will adopt, to some extent, the Web Content Accessibility Guidelines (“WCAG”) set forth by the World Wide Web Consortium, an international web development organization. The WCAG guidelines are the dominant industry standard for website accessibility and set forth a detailed framework of technical methods to satisfy accessibility criteria for individuals with visual, aural, and other types of disabilities.
In the wake of the Davis decision, public accommodations must be even more cognizant of the risks that come with maintaining a website that does not meet generally recognized standards of accessibility for patrons with both visual and other types of disabilities. As a result, public accommodations are advised to consider conducting a technical accessibility review of their current web content to help evaluate the present level of compliance with the WCAG guidelines. That review will help determine the efforts that may be needed to achieve greater compliance and ultimately allow the entity to make more educated decisions on what next steps may be most appropriate at this time.