The World Wide Web was invented in 1989. No one could have anticipated that the nascent concept would put a wealth of information and services instantly at our fingertips.
The Americans with Disabilities Act (ADA) certainly didn’t. When it was signed into law in 1990, the ADA was concerned primarily with access to buildings and other physical facilities. The statute was silent on the websites and mobile applications that most of us depend on today.
However, Title III of the ADA requires that any place of “public accommodation,” as defined in 42 U.S.C. § 12181, provide “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities” (28 C.F.R. § 36.303(c (1)). An individual with a qualifying disability can sue a business that doesn’t meet Title III’s requirements and obtain injunctive relief and attorney’s fees.
Courts are increasingly ordering companies to make their websites and mobile apps accessible to individuals with visual impairments. The cases fall into two primary camps:
The Third, Sixth, Ninth, and Eleventh Circuits have held that the ADA’s mandate applies to digital services that have a “nexus” to a physical place of public accommodation.
Courts within the First, Second, and Seventh Circuits have held that a website can be a place of public accommodation without any connection to a physical location.
The Supreme Court was given an opportunity to resolve the circuit split when the defendant appealed the Ninth Circuit decision in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (2019). The Court denied the petition for writ of certiorari on October 7, 2019, leaving open the question of when, and to what extent, digital services must be made accessible.
Neither Congress nor the Department of Justice (DOJ), responsible for issuing regulations and guidance for the implementation of Title III, has taken steps to clarify the issue.
No DOJ Guidance on Public Accommodation Under ADA
In 2003, the DOJ issued guidance with regard to the Accessibility of State and Local Government Websites, and since then has entered into scores of settlement agreements and consent decrees with public and private-sector entities. In these cases, the DOJ has consistently maintained the position that websites are public accommodations and organizations should conform to the Web Content Accessibility Guidelines (WCAG) 2.0.
However, the DOJ has not promulgated any rules with regard to the issue. The agency published an Advance Notice of Proposed Rulemaking (ANPR) in 2010 but postponed the rulemaking process in 2017 due to concerns about the potential cost and practical challenges to businesses. As a result, organizations have been denied the opportunity for public comment, even as the DOJ has advocated high technical standards.
Meanwhile, the question of website accessibility continues to play out in the courts. The first such case to go to trial, Gil v. Winn-Dixie Stores, 242 F. Supp. 3d 1315 (S.D. Fla. 2017), opened the floodgates to digital accessibility litigation.
The plaintiff, a visually impaired person, alleged the regional grocery chain’s website violated the ADA because it didn’t work properly with his screen-reading software. The questions before the court were:
Whether Winn-Dixie’s website was a public accommodation or a service thereof;
Whether Gil was unable to fully enjoy Winn-Dixie’s goods, services, and other accommodations; and
Whether the required changes to Winn-Dixie’s website were reasonable.
District Court Judge Robert N. Scola noted that other courts had found websites that are “heavily integrated with physical store locations,” and, thus, services of a public accommodation that are subject to the ADA.
Judge Scola found that Winn-Dixie’s website met that criterion because it offered digital coupons, pharmacy management, and other services that were integral to the company’s accommodations.
In the Robles case, the plaintiff made similar arguments—that Domino’s website and mobile app did not work with his screen-reading software, leaving him unable to take advantage of services that were only available online.
Robles sought a permanent injunction requiring Domino’s to comply with WCAG 2.0. The district court held that Domino’s website and mobile app were subject to the Title III of the ADA, but that the lack of meaningful guidance from the DOJ created concerns over due process. The case was dismissed without prejudice.
The Ninth Circuit reversed, holding that agency guidance did not appear to be forthcoming, and it was within the purview of the district court to decide the issue. The appellate court further held that requiring compliance with WCAG 2.0 did not violate due process because it was merely one remedy a court could order to satisfy ADA requirements.
Title III ADA Regulations: More Questions Than Answers
Most digital accessibility lawsuits have been filed against larger organizations. Although Title III of the ADA only provides for injunctive relief and attorney’s fees, plaintiffs’ attorneys likely believe that large companies will be willing to pay settlements to avoid litigation. Many smaller firms are taking a wait-and-see approach, looking for guidance from the DOJ before overhauling their websites.
To date, a September 25, 2018, letter from Assistant Attorney General Stephen E. Boyd is the only guidance available. Written in response to an inquiry from a bipartisan group of U.S. Representatives, the letter states that a company’s website is subject to Title III if the company otherwise qualifies as a public accommodation.
It further notes that in the absence of legislation from Congress, WCAG 2.0 is considered the gold standard for website accessibility, although companies have the flexibility to determine how best to meet ADA requirements.
The Current State of Website Accessibility Compliance
Congress remains silent on the matter. A February 2018 House bill that would have required plaintiffs to provide written notice of noncompliance with the ADA before filing suit was blocked in the Senate. Meanwhile, more than half the states have issued guidance or passed legislation governing website accessibility, many adopting WCAG 2.0.
Hundreds of digital accessibility lawsuits have been filed, and the Supreme Court has shown no indication of resolving the circuit split. Organizations are left to balance litigation risk against the potentially high cost of updating their websites and mobile apps and determine which standard they should follow.
Learn More About Web Accessibility and Cyber Law
The World Wide Web Consortium (WC3) is the organization that developed the above-mentioned international standards for web accessibility. Visit the WC3 site to learn more about the consortium; access the Web Content Accessibility Guidelines here.
The U.S. Department of Health and Human Services operates Usability.gov, the nation’s leading resource for user experience best practices and guidelines. Visit their site to learn more about accessibility.
Purdue Global Law School offers an online Executive Juris Doctor program with a law and technology track that provides advanced legal training on matters related to cyber law. Single courses in technology and the law are also available.