A New Era of Accessibility: Website Compliance with the Americans with Disabilities Act
By Alissa Carter Verson
In 2018, 2,285 lawsuits were filed in federal court against businesses whose websites were not in compliance with the Americans with Disabilities Act (ADA), an increase of 181% from 2017.1 Many businesses have been caught off guard and were not aware that the ADA applied to their websites. Lawsuits were also filed under state statutes governing this issue. Thus, it is important to understand (1) the basis for these lawsuits and how the ADA and Internet relate, (2) the value of website compliance with the ADA and (3) steps your business clients need to take to ensure website compliance.
The Americans with Disabilities Act and the Internet
For over two decades, the U.S. Department of Justice (DOJ) has interpreted the ADA to cover websites operated by state and local governments.2 As state and local governments began communicating more about their services and events on their websites, residents without disabilities could access information about their state and/or local governments at any time. These technological advancements led to website inequality for persons with disabilities. Poorly designed websites that were not easily interpreted by screen reading technology created a barrier between those with disabilities and the government programs meant to help them. The DOJ has also opined that the ADA applies to private websites and services.3 As evidenced above, in the last two years there has been an increase in lawsuits alleging businesses’ websites are not in compliance with the ADA.
Title III of the ADA calls for the “Prohibition of discrimination by public accommodations,” stating:
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.4,5
The ADA prohibits businesses from discriminating against customers with disabilities by inhibiting those customers from fully benefiting from the businesses’ goods and services. Thus, it is the opinion of those filing lawsuits against companies claiming non-compliance with the ADA that businesses must ensure that visually impaired and hearing-impaired visitors to their website have full access to its functions, and courts are beginning to agree.6 Blind and visually impaired individuals, for example, use screen-reading software that allows them to read text through a speech synthesizer or braille output. In lawsuits claiming ADA non-compliance, plaintiffs assert that the software was unable to navigate the business’ website and/or mobile application because the website and/or mobile application failed in its design.
As of now, there are few recent published opinions specifically on the ADA’s applicability to access of commercial websites by customers with disabilities, as many lawsuits are still ongoing or have reached settlement. However, the trend of the unpublished opinions on this issue is moving toward non-compliant websites being in violation of the ADA, including several denials of defendants’ motions to dismiss7 and denials of defendants’ summary judgment motions.8,9 In Carroll v. Fedfinancial Fed. Credit Union, a visually impaired man from Washington, D.C. filed suit against a credit union based in Silver Spring, Maryland, claiming that their website was in violation of Title III of the ADA. The plaintiff visited the credit union’s website to learn more information about membership and opening hours. However, due to accessibility barriers, including the inability of screen reading technology to navigate the website, he was denied equal access to the credit union’s services.10 In Carroll, the court denied the defendant’s Motion to Dismiss based on the applicability of Title III of the ADA. The court did not offer an opinion as to whether a commercial website falls under the definition of “public accommodation.” Alternatively, the court found that if a commercial website is offered in connection with a brick-and-mortar location, the website is subject to the requirements of Title III.11,12
Although the facts in most published opinions on this matter have a nexus between a commercial website and brick and mortar location, courts are beginning to hold that this nexus is not necessary to demand commercial website compliance with the ADA. Many courts are relying on National Ass’n of the Deaf v. Netflix, Inc. and National Association of the Blind v. Target Corp. in drawing these conclusions. In Netflix, the court concluded that Netflix’s streaming services on its website constituted a “public accommodation” under the ADA.13 The court pointed towards the legislative history of the ADA, stating that Congress intended for the ADA to adapt to changes in technology.14 The Target court stated: “To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute”15 and that “consistent with the plain language of the statute, no court has held that under the nexus theory a plaintiff has a cognizable claim only if the challenged service prevents physical access to a public accommodation.”16
The Value of Compliance with the Americans with Disabilities Act
Steps Towards Compliance with the Americans with Disabilities Act
Additionally, you should advise business clients to post a policy on their website describing their efforts to make their website ADA compliant so that even those that do not need to use those features know that the business is supportive and inclusive of people with disabilities. It is advisable for businesses to hire an attorney to review contracts with website developers to protect them in the event the website developer does not make the business’ website in full compliance with the ADA. Business clients that offer franchises or own multiple corporate locations may have micro-websites that allow franchise owners or general managers to customize the location’s page. If so, you should advise business clients to ensure those micro-websites are also in compliance.
Cases alleging commercial website non-compliance with the ADA have only recently increased in volume. There are questions remaining as to how the associated case law will develop and how the decisions will affect different types of businesses and administrators of different types of commercial websites. Nonetheless, clearly your business clients should take preemptive steps to protect themselves from claims of website non-compliance with the ADA. Moreover, it is critical for attorneys to counsel their business clients to adapt to this new era of accessibility.
1. Jason Grant, ADA Website Accessibility Suits Flood New York’s Federal Courts, Report Says, New York Law Journal (January 17, 2019), https://www.law.com/newyorklawjournal/2019/01/17/ada-website-accessibility-suits-flood-new-yorks-federal-courts-report-says/?slreturn=20190827151031.
4. Americans With Disabilities Act of 1990, 42 U.S.C. §12182(a) (2008).
5. See Id., 42 U.S.C. §12181(7) for the definition of “public accommodation.”6. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (2019).
7. e.g., Gathers v. 1-800-FLOWERS.com, No. 1:17-cv-10273 (D.M.A. February 12, 2018); Access Now, Inc. v. Blue Apron, LLC, No. 17-cv-116-JL (C.D.N.H. November 8, 2017); Kayla Reed v. CVS Pharmacy, Inc., No. 2:17-cv-03877-MWF-SK (C.D.C.A. October 3, 2017); Gorecki v. Hobby Lobby Stores, Inc., No 2:17-cv-01131-JFW-SK (C.D.C.A. June 15, 2017).
8. See Long v. Live Nation Worldwide, Inc., No. 2:16-cv-01961 (W.D.W.A. July 23, 2018) (holding that the defendant’s website is subject to the accessibility standards of the ADA as a matter of law).
9. See e.g, Long v. Live Nation Worldwide, Inc., No. 2:16-cv-01961 (W.D.W.A. July 23, 2018); Robles v. Yum! Brands, Inc. d/b/a Pizza Hut, No. 2:16-cv-08211 (C.D.C.A. January 25, 2018); Gil v. SMG Holdings, LLC, No 1:18-cv-20107 (S.D.F.L. May 28, 2018).
10. Carroll v. FedFinancial Fed. Credit Union, 324 F.Supp. 3d 658 (E.D.V.A. 2018).
12. See also Castillo v. Jo-Ann Stores, LLC, 286 F.Supp 3d 870 (N.D.O.H. 2018).
13. National Ass’n of the Deaf v. Netflix, 869 F.Supp. 2d 196 (D.M.A. 2012).
14. Id. (referencing H.R. Rep. 101-485(II), at 108 (1990)).
15. Nat’l Federation of the Blind v. Target Corp., F.Supp. 2d 946, 953 (N.D.C.A. 2006).
16. Id. at 953-954.
17. Cf. Hindel v. Husted, No. 17-3207 (S.D.O.H. February 1, 2017) (granting a permanent injunction against the Ohio Secretary of State under Title II of the ADA that its website conform to WCAG 2.0 guidelines (see infra note 20)).
18. Cal. Civil Code §51(f) (2016).
19. Thurston vs. Midvale Corporation, No. B291631 (2d App. Dist. Cal. September 3, 2019) (certified for publication but not yet published).
20. You can view a full explanation of WCAG at https://www.w3.org/WAI/standards-guidelines/wcag/.
21. Thurston vs. Midvale Corporation, No. B291631 (2d App. Dist. Cal. September 3, 2019) (certified for publication but not yet published).
Alissa Carter Verson is an associate with Carter & Tani, focusing her practice on franchise law and business transactions. She earned her J.D. from IIT Chicago-Kent College of Law in 2015. She is a New Lawyer Director on the DCBA Board of Directors. She is also a member of the ABA Forum on Franchising, attending the forum annually.