Most businesses operating “brick-and-mortar” establishments are aware of their responsibilities under the Americans with Disabilities Act (“ADA”) to ensure their facilities are accessible to those with disabilities. Under Title III of the ADA, and most state law counterparts, the disabled must be given equal access to “places of public accommodation,” which include private establishments such as stores, restaurants, hotels, museums, libraries, and private schools, among others.
Many organizations may not realize, however, that the responsibility to provide equal access to the disabled may also extend to their websites as well. In today’s world, businesses are increasingly reliant upon the internet to interact with customers in ways that might otherwise be limited in a traditional facility. Websites allow businesses to reach a larger audience of people at any given moment. While that may generally be good for business, it can also mean more trouble for organizations unaware of their responsibilities to maintain an accessible website.
At the center of a recent flood of litigation, which is expected to grow exponentially, is whether a company’s use of electronic space or the internet qualifies under the definition of Title III of the ADA as a public accommodation (42 U.S.C . § 12181). The debate focuses on whether to limit the application of the ADA to “physical structures” which many believe would allow businesses operating solely on the internet to blatantly discriminate against persons with disabilities when selling their goods and services. As inequitable as that may appear, the law is still developing and the courts are split on whether to limit the application of the ADA to physical spaces or extend it to the internet.
The Department of Justice (“DOJ”) has been firm in its view that websites are “places of public accommodation” that must be made accessible to disabled users. The Federal courts are less clear on whether and to what extent businesses operating on the internet are required to make their websites accessible to the disabled but the recent trend among the courts leans toward extending the definition of a “place of public accommodation” to non-physical locations which include online content.
The First, Second, and Seventh Circuits have held that places of public accommodation are not limited to physical spaces. On the other side, the Third, Sixth, Ninth, and Eleventh Circuits have concluded that the ADA only applies to physical structures. Interestingly, Netflix has found itself on both sides of these rulings. Highlighting the split, the Massachusetts federal court concluded Netflix was covered by the ADA because the ADA's definition of public accommodation is not limited to physical structures, while the Ninth Circuit has ruled that the ADA doesn't apply to Netflix since the online video provider is "not connected to any actual, physical place."
Indeed, there has been an increase in litigation around website accessibility lately, with a large number of popular, international retailers and prominent universities being targeted for allegedly failing to maintain accessible websites. Lawsuits have been heating up for Harvard and MIT, both of which allegedly violated the ADA and the Rehabilitation Act of 1973 by failing to provide closed captioning in their online educational materials including lectures, courses, and podcasts. The universities have asserted that the lawsuits should be dismissed absent any current accessibility laws that require closed captioning for such content. Unsurprisingly, the DOJ has issued statements of interest in support of the plaintiffs in the lawsuits. Magistrate Judge Katherine A. Robertson issued a report siding with the plaintiffs and the DOJ, recommending the District Judge of Massachusetts deny Harvard and MIT’s motion to dismiss. Thus, if the District Judge agrees, the case may proceed without delay and will have broad implications for universities, colleges, and other eLearning companies.
With conflicting positions being asserted by the courts and increasing litigation on this issue, business operators may wonder what steps they should take to make their websites accessible. Currently, there are no promulgated standards for website accessibility under the ADA. The DOJ expects to publish a Notice of Proposed Rulemaking regarding standards for website accessibility during fiscal year 2018.
In the interim, the DOJ has referred to the Web Content Accessibility Guidelines (“WCAG”) established by the Web Accessibility Initiative of the World Wide Web Consortium, and is even considering adopting these standards. The WCAG includes 12 guidelines organized under four principles (perceivable, operable, understandable, and robust) and provides testable criteria that allow web owners to evaluate their website’s accessibility level. To “pass” the WCAG standards, a website should earn either an “A,” “AA,” or “AAA” under all 12 guidelines, with “AAA” being the highest level of accessibility.
In addition to the WCAG standards, there are also standards set out for Federal agencies. Federal agencies are required to maintain accessible websites under Section 508 of the Rehabilitation Act of 1973, as amended 29 U.S.C. 794(d). The requirements for Federal agencies identified in the Standards for Electronic and Information Technology are published by the U.S. Access Board, 39 CFR 1194. The DOJ is also considering adopting section 508 standards as an alternative to either the WCAG standards or promulgating its own new guidelines.
While it may be tempting for website owners to wait for DOJ guidance on what constitutes an ADA accessible website before taking any action, it would be wise for businesses to be proactive and start evaluating their website’s accessibility and preparing a plan, as needed, to make any modifications under the WCAG or section 508 standards. A growing number of settlements and lawsuits across the country suggest litigation on this matter will only continue to increase in the next few years, which may prove costly for businesses sitting idle and waiting for the government to promulgate standards.
The Harvard and MIT lawsuits highlight the expensive costs to businesses who find themselves caught in web accessibility claims. Businesses who are already facing web accessibility challenges should consider settling the matter early on if possible to help reduce costs and maintain a positive relationship with the public. Further, settlements allow companies to focus its resources on improving their website’s accessibility to minimize the risk of further claims.
Kaufman Dolowich & Voluck recently assisted in reaching a favorable settlement for the American Heart Association in a web accessibility case that ultimately helped to reduce costs while maintaining favorable optics for the nonprofit. If your business is facing web accessibility challenges, or you have questions regarding your business’ potential liability, Kaufman Dolowich & Voluck is equipped to help.
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 Carparts Distribution Ctr. v. Automative Wholesalers Assoc. of New England, Inc., 37 F.3d12, 19 (1st Cir. 1994); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 2000); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).
 Access Now, Inc. v. Southwest Airlines Company, 227 F. Supp. 2d 1312, 1319 (S.D. Fla. 2002).