By: Mike Fadden*

              For years, businesses have been on the receiving end of demand letters and complaints alleging their websites are inaccessible and violating the Americans with Disabilities Act (“ADA”).^[1]  The unfortunate reality is that the legal requirements for a business’s website are about as clear as mud. The goal of this blog post is to help inform what those requirements are based on the ADA, case law, and guidance from the Department of Justice (“DOJ”).

Background

              The ADA was first passed in 1990^[2] while the first website was launched in 1991.^[3] Given the timing, it’s unsurprising that the ADA didn’t contemplate specifically how the law should apply in an internet age.  Fast forward 20+ years and the topic is still hotly debated and heavily litigated.^[4] Put simply, the issue revolves around whether the ADA requires websites to be accessible to users who have a disability. An often-given example is a blind user who relies on screen reader technology to navigate a website. Still, the scope of those impacted extends far beyond individuals who are completely blind—including those who may have low vision, impaired motor skills, or color blindness.^[5]

Legal Background

              The most relevant text of the ADA states, “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.”^[6]  The statute goes on to list 12 different examples of public accommodations including parks, zoos, daycare centers, retail stores, restaurants, hotels, service businesses such as barber shops or a bank, and others.^[7] When an individual submits a complaint against a business for an inaccessible website, one of the most important questions a court must answer is whether the business’s website is a public accommodation within the meaning of the statute.

Interpretation by the Courts

              Since the text of the statute is silent on whether a website is a public accommodation, courts have been forced to answer the question based on their own interpretation. With 94 Federal District Courts and 12 Circuit Courts of Appeals, it’s not surprising that there hasn’t been consensus across all jurisdictions.^[8]  A decision by the United States Supreme Court on the issue could clarify the statute’s application to websites and we may see that shortly. On October 4, 2023, the Supreme Court heard oral arguments in Acheson Hotels, LLC v. Deborah Laufer.^[9] In this case, Acheson argued Laufer did not have standing to sue a hotel for an inaccessible website when Laufer had no intention of visiting the hotel.^[10] This case is unique, however, because both parties agree the case is moot because Laufer withdrew her lawsuit, the hotel has changed ownership and a website that has been updated.^[11] Despite agreement by all parties that the case is moot, Acheson asked the Court to address standing before turning to mootness.^[12] Justice Sotomayor pointed out that the Court has never addressed standing before mootness.^[13] This reality was conceded by Acheson.^[14] If the Court decides the case is moot and does not address standing, the circuit courts will not be aided in future cases. If, however, the Court addresses the standing issue before mootness, the opinion may help to resolve aspects of the circuit split.

The difference in opinions by the Circuit Courts of Appeals has resulted in two different theories on whether a website is a place of public accommodation. In the Third, Sixth, Ninth, and Eleventh Circuits, the courts have held that a “place of public accommodation” is restricted to a physical space.^[15] While a website is not a physical space on its own, the courts have applied a “nexus” test which can be summarized as an analysis of whether the inaccessibility of the website in question would impair the full and equal enjoyment of the goods and services at the physical location. Meaning, the Third, Sixth, Ninth and Eleventh Circuits could find a website in violation of the ADA only if the website has a sufficient nexus to a physical location.  For example, Target’s website was determined to have a sufficient nexus to its physical locations because an online customer could order photos to be picked up in the store or refill prescriptions to be picked up at the store.^[16] However, if a business has no physical structure for customers to visit and operates solely online, it is unlikely a sufficient nexus would be established and these websites would not be considered a “place of public accommodation” under the ADA.

In the Seventh Circuit and district courts in the First Circuit, courts have held that a “place of public accommodation” does not need to be a physical space and could include businesses where customers never visit a physical location.^[17] An illustrative example of this application came out of a Massachusetts District Court opinion on National Association of the Deaf v. Netflix, Inc., where the court held that Netflix’s website on its own is a place of public accommodation and falls within the scope of the ADA.^[18]  In the Netflix case, the court cited to Carparts Distrib. Ctr. v. Auto. Wholesaler’s Assoc., a First Circuit case decided in 1994.^[19] The court notes the Carparts decision established that sales made in person should not be distinguished from sales made over the phone or via mail and thus the ADA extends beyond just those in person activities.^[20]

Advice for Businesses

              Due to the circuit split discussed above, the question of whether a website must be accessible will likely turn on which jurisdiction is deciding the case as well as the nature of the business. So long as there are plaintiff-friendly jurisdictions, businesses are at risk of receiving complaints and should make their websites accessible. While the legal risk may be the catalyst for businesses to make their websites accessible, other compelling arguments for accessibility exist. For example, businesses that value diversity should consider whether they are living up to their values if they fail to make a website accessible to their customers and employees. Additionally, businesses with inaccessible websites are ignoring a segment of the market and leaving money on the table. According to one study done by Boston-based Nucleus Research, businesses operating an internet retail presence are leaving more than $6.9 billion on the table by failing to make their websites accessible to those with disabilities.^[21]

Currently, Title III of the ADA provides no standard  to private businesses in terms of what makes a website accessible.^[22] However, in August of 2023, the Department of Justice issued a Notice of Proposed Rulemaking which would set technical standards for what satisfies the accessibility requirement.^[23]  It’s important to note that the proposed rules would only apply to State and local government entities under Title II of the ADA, but should serve as an indication of what the expectations are for Title III businesses as well.  The DOJ is proposing WCAG 2.1 Level AA which is a set of standards produced by a body of accessibility experts.^[24] These standards have long served as an industry best practice and the proposed rules are a step toward formalizing the adoption of these standards.^[25]

Conclusion

              The question of whether a business must make its website accessible or not can be answered, like most legal questions, with “it depends.” Nonetheless, businesses who fail to make their website accessible are at risk for suit alleging an ADA Title III violation. The end result will likely turn on the jurisdiction in which the suit was filed. As a result, the most prudent course of action would be to seek conformity with the WCAG 2.1 Level AA standards of accessibility, given their potential for adoption by the DOJ. If the legal risk isn’t enough for businesses to pursue an accessible website, the social and economic considerations should tip the scales in favor of compliance.

 

*Mike Fadden is an Online Editor for JLI Vol. 42.

 

[1] Gus Alexiou, Website Accessibility Lawsuits Rising Exponentially in 2023 According to Latest Data, Forbes, https://www.forbes.com/sites/gusalexiou/2023/06/30/website-accessibility-lawsuits-rising-exponentially-in-2023-according-to-latest-data.

[2] Review Laws, Regulations & Standards, ADA.gov, https://www.ada.gov/law-and-regs/ (last visited Oct. 28, 2023).

[3] Internet, Our World in Data, https://ourworldindata.org/internet (last visited Oct. 28, 2023).

[4] Supra note 1.

[5] Jonathan Lazar, Daniel Goldstein, & Anne Taylor, Ensuring Digital Accessibility Through Process and Policy 2 (1st ed. 2015).

[6] 42 U.S.C. 12182 (2023) (emphasis added).

[7] 42 U.S.C. 12181(7) (2023).

[8] About the U.S. Courts of Appeals, United States Courts, https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals (last visited Oct. 28, 2023).

[9] Transcript of Oral Argument, Acheson Hotels, LLC v. Deborah Laufer (22-429) (U.S., 2023).

[10] Id.

[11] Id at 47.

[12] Id at 7.

[13] Id at 7.

[14] Id at 7.

[15] Ford v. Schering-Plough Corp., 145 F.3d. 601, 614 (3rd Cir. 1998) (holding the term “public accommodation” cannot extend to non-physical access); Parker v. Metro. Life Ins. Co., 121 F.3d. 1006, 1010–11 (6th Cir. 1997) (holding a “public accommodation” is a physical place); Earll v. eBay, Inc., 599 Fed.Appx. 695, 696 (9th Cir. 2015) (holding that “public accommodation” necessitates some connection between the discrimination and a physical space); Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002) (holding that the ADA extended beyond just physical barriers to access and that a hotline which discriminated against disabled users seeking to be contestants on Who Wants to be a Millionaire was in violation of the ADA because it served as discrimination against eligibility to participate on a show that takes place in person at a studio).

[16] Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 949-56 (2006).

[17] Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200-02 (D. Mass. 2012) (holding that Netflix’s streaming service is a “public accommodation” despite the service being accessed exclusively in one’s home); Morgan v. Joint Admin. Bd., Retirement Plan of the Pillsbury, Co., and others, 268 F.3d 456, 569 (7th Cir. 2001) (holding that the site of a sale is irrelevant to Congress’s goal of granting the disabled equal access to the sellers of goods and services). See also Romero v. 88 Acres Foods, Inc, 580 F. Supp. 3d 9, 19 (S.D.N.Y 2022) (holding that “websites qualify as places of ‘public accommodation,’ albeit electronic ones, and, as such, are required to provide equal services to visually impaired and sighted people.”). See also Nat’s Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) (holding that accessing a digital library that is not associated with any physical location is a place of “public accommodation.”)

[18] Netflix, Inc., 869 F. Supp. 2d at 200-02.

[19] Carparts Distrib. Ctr. v. Auto Wholesaler’s Assoc. 37 F.3d 12 (1st Cir. 1994).

[20] Id. at 19.

[21] Rebecca Wetteman & Trevor White, The Internet is Unavailable, Nucleus Research, https://cdn2.hubspot.net/hubfs/153358/Nucleus-The%20Internet%20is%20unavailable.pdf (last visited, Oct. 28, 2023).

[22] 42 U.S.C. 12181.

[23] Dep’t of Justice, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, https://www.federalregister.gov/documents/2023/08/04/2023-15823/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state.

[24] Id. WCAG standards are developed by the World Wide Web Consortium (W3C), an international organization developing best practices for websites. WCAG standards have undergone various versions with each version identifying issues and categorizing these by severity and impact on disabled users. Those issues that are most severe are categorized as ‘A’ level issues with least severe issues categorized as ‘AAA’. It has been widely accepted that AA compliance is a reasonable middle ground making websites mostly accessible to disabled users while avoiding too exacting of standards for the businesses.

[25] Id.