Reprinted with permission from the May 4, 2016 edition of The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877.257.3382 or email@example.com.
A client recently emailed me for assistance with an Americans with Disabilities Act (ADA) claim. I quickly contacted a colleague who practices construction litigation, but it turned out that the claim did not involve one of my client's brick-and-mortar locations. Rather, my client's website was at the center of the complaint because it did not comply with the ADA. "Are websites even subject to the ADA?" my client asked.
The answer to that question is not as clear as website operators would like. To the contrary, this is a gray area where the law is unsettled and evolving. This uncertainty has created an opportunity for plaintiffs lawyers, who are increasingly filing lawsuits and sending demand letters asserting that businesses' websites violate Title III of the ADA, which prohibits discrimination based on disability in places of public accommodation.
Under the ADA, places of public accommodation must ensure equal access to the goods and services they offer to disabled individuals. The statute defines "public accommodations" as places such as hotels, retail stores, movie theaters and restaurants. Because the law was enacted in 1990, before the widespread use of the Internet, the ADA does not mention websites, and does not provide any guidance or standards for accessing websites. Nevertheless, numerous claims and lawsuits have been brought, arguing that websites that offer goods and services constitute public accommodations that must comply with the ADA's general accessibility mandate and that visually impaired, hearing impaired and other disabled individuals are being prevented from accessing all of the information contained on a business' website. For example, the site may contain video content that is not close-captioned or cannot be accessed by blind individuals, and parts of the site may not interface properly with screen readers or other assistive technologies.
In 2010, the U.S. Department of Justice (DOJ) announced that it would begin soliciting comments on proposed regulations governing website access. That comment period was supposed to conclude in July; however, the DOJ recently extended it until 2018. In the meantime, the DOJ has taken the position in amicus briefs and certain enforcement actions that the ADA does apply to websites.
While the DOJ is still working through its rule-making process, courts around the country have begun to address whether the ADA applies to websites. The problem, however, is that only a limited number of courts have decided the issue (the vast majority of these cases are settled early, so no ruling is made), and those courts have reached different conclusions and therefore failed to clear up the uncertainty in this area.
Some courts have found that, where a business' website does not have any connection to a retail store or other physical place, the site is not a public accommodation as defined by the ADA. For example, the U.S. Court of Appeals for the Ninth Circuit reached this conclusion in a case involving Netflix's website. In contrast, some courts have held that websites are public accommodations, despite the fact that they are not connected to a physical location. For example, a Massachusetts district court held that Netflix's Web-only video-streaming business is a "service establishment" and a public accommodation subject to the ADA, and other courts have found any websites that offer goods or services to the public, even those that are not connected in any way to a physical store, are subject to the ADA.
Another set of courts takes a middle-ground approach, finding that a website is a public accommodation subject to the ADA only where there is a sufficient "nexus" between the site and the defendant's physical retail store. For example, a California district court allowed a lawsuit brought by blind plaintiffs against Target to proceed because the inaccessibility of Target's website impeded the plaintiffs' full and equal enjoyment of goods and services offered in Target's physical stores, as these customers were prevented from using Target's site to find stores, order prescription refills or photo reprints online for pickup at a store, or use other features and information available to sighted customers.
What is clear and relatively consistent in the litigation filed to date is that judges have been unwilling to stay the litigation until the DOJ publishes its rules and guidelines on this issue. In most cases, these judges also deny motions to dismiss on the grounds that the ADA does not apply to websites. Although defendants can still assert and attempt to prove various defenses to the ADA claims, the courts' unwillingness to dismiss the cases at an early stage results in defendants incurring substantial attorney fees and expenses in discovery and other aspects of the litigation.
Some defendants may not be concerned about their exposure in these lawsuits because the ADA is an injunctive statute, and, unless the plaintiffs also prove other claims, the only relief they can obtain is an injunction requiring the defendants to bring their websites into compliance with the ADA. However, pursuant to the statute, a losing defendant may be required to reimburse the prevailing plaintiff for his or her attorney fees and costs. Therefore, the longer the litigation continues, the greater the exposure in that regard. There are also public relations considerations involved in deciding whether to challenge claims brought by disabled plaintiffs. It is for these reasons that the vast majority of businesses that have been sued on this basis have settled the litigation at an early stage and under confidential terms.
Those businesses that have not yet been confronted with this issue are understandably unsure about whether they should take any action at this time and, if so, what strategy and approach to employ. A business that operates a website that is purely informational and does not offer any goods or services for sale will have little, if any, risk and exposure. However, for the substantial number of businesses that do offer at least some goods or services through their websites, or whose websites are connected in certain ways with their brick-and-mortar locations, the law seems to be moving in the direction of all websites of this type being deemed to be public accommodations that are subject to the ADA.
It is therefore in these businesses' best interest to proactively take those steps that are feasible, reasonable and appropriate in order to bring their websites into compliance with the ADA. But how can they do so when the DOJ has not yet issued its guidelines for making websites accessible to disabled individuals? Plaintiffs lawyers, a number of courts and the DOJ itself have all accepted or relied on standards developed by the World Wide Web Consortium—the Web Content Accessibility Guidelines 2.0 level AA (WCAG 2.0 AA)—as being the de facto standards for website accessibility. Another set of standards that is less rigorous than WCAG 2.0 AA, but is also frequently cited, was promulgated by the U.S. Access Board, a federal agency that develops policies for other federal agencies regarding website access (the Section 508 Standards). Both sets of standards provide detailed technical requirements for making websites accessible to individuals with disabilities. Moreover, there are a number of outside consultants that businesses can hire to help determine what steps should be taken and what technologies, coding and functions should be added to websites to improve their accessibility. Taking these steps will obviously involve some cost, and a business may not be able to afford to correct every access issue with a particular website. However, there are several fundamental changes and measures that can be carried out to make a site more compliant and reduce a business' exposure in the event a demand or lawsuit is asserted.
Many businesses operate more than one website and possibly one or more mobile applications. All of these should be examined and, to the extent possible, brought into compliance with the above referenced standards. In addition, certain parts of a business' website—for example, a link that takes the visitor to a page where he or she can purchase a gift card—may be operated by an independent third party. In order to limit the risk and liability from these portions of its website, a business should, to the extent possible, require in its agreements with such third parties that they take reasonable steps to make their own sites compliant with the WCAG 2.0 AA or Section 508 Standards.
Despite the uncertainty and unsettled state of the law in this area, the issue of websites' compliance with the ADA is not going away and, if anything, will only become more of an issue and risk over the next few years. Businesses that operate one or more sites or apps should at least consider whether and how their sites can be modified to improve accessibility for individuals with disabilities.
Charles S. Marion is a partner in the commercial litigation and intellectual property litigation practice groups of Pepper Hamilton in the Philadelphia office. He focuses his practice primarily in the areas of complex business litigation, intellectual property litigation, franchise litigation, and products liability. He has represented corporations and individuals in a variety of industries and his intellectual property and products liability cases involve a wide range of technologies, devices and products.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.