Reasonable Accommodation in Cyberspace: Lawsuits challenge websites to comply with the Americans with Disabilities Act

Monday, July 4, 2016 - 11:21

A growing number of lawsuits contend that commercial websites qualify as places of public accommodation under the Americans with Disabilities Act (ADA), and that the ADA therefore requires businesses to take reasonable efforts to make their websites accessible to disabled users.

In federal court in Pennsylvania, one plaintiff’s firm has brought such suits against the National Basketball Association and dozens of national retailers, including Foot Locker, Toys “R” Us, Brooks Brothers, Ace Hardware and Patagonia. These lawsuits argue that publicly accessible websites, such as NBA.com, must be designed to work with “assistive technology.” Assistive technology includes screen readers and other devices that help visually impaired persons and others with physical limitations view and click through the website. To be compatible with these tools, websites must meet certain technical standards and be appropriately designed.

Hundreds of online retailers and other companies likely have received demand letters asserting similar claims. Typically, the demand is that the company bring its website into compliance with suggested technological standards and pay some amount of attorneys’ fees and costs to the plaintiff’s firm.

Does the ADA Require Retail Websites to Be Modified for Accessibility to the Visually Impaired?

The question of whether the ADA is applicable to cyberspace has been hotly contested over the last two decades.

In recent years, lawsuits have been filed on behalf of the visually impaired by advocacy groups, plaintiffs’ firms, and, in a few cases, by the United States Department of Justice (DOJ), asserting that websites should be made accessible to the visually impaired. These claims typically allege that a retailer’s website relies on an exclusively visual interface despite the existence of technologies that, if employed, would allow the visually impaired to access the website. These technologies include alternative text accompanying images, accessible forms, descriptive links and resizable text.

Title III of the ADA, 42 U.S.C. 12182(a), prohibits discrimination on the basis of disability in the full and equal enjoyment of public accommodations on the basis of disability. The statute defines a place of public accommodation to include retail facilities operated by private entities, including clothing and grocery stores and other establishments offering goods or services for sale. Id. at 12181. The ADA’s definitions of discrimination include the “failure to make reasonable modifications” as well as the “failure to take such steps as may be necessary to ensure that no individual with a disability is excluded … or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless … taking such steps would fundamentally alter the nature of the … service … being offered or would result in an undue burden.”

Title III does not specifically address the accessibility of websites. The DOJ, however, has taken the position that entities have legal obligations to make their websites accessible to the disabled. The DOJ has brought enforcement actions against and entered into consent agreements with online retailers over allegations that a website violated Title III of the ADA by being inaccessible to blind customers.

The DOJ had promised to issue guidance for what businesses must do to make websites accessible in November 2015; however, they have announced that the promulgation of any such recommendations will be delayed until at least 2018. Without such guidance, courts, businesses and disabled individuals currently are left with uncertainty as to their rights and obligations.

A review of recent court decisions allows the following conclusions: An entity that merely operates a website, with no physical presence, may not be covered by the ADA; however, a website operated by a brick-and-mortar retailer, as a complement to its actual store locations, likely must be ADA compliant, especially if the website offers online shopping or other online services related to the retailer’s off-line business.

Some courts have held that “purely online” businesses are not subject to the ADA. For example, the U.S. Court of Appeals for the Ninth Circuit held last year that the website eBay.com was not subject to the ADA because “eBay’s services are not connected to any actual, physical place.” Earll v. eBay, Inc., 599 Fed. Appx. 695 (April 1, 2015). See also Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1114-16 (N.D. Cal. 2011) (explaining that a website is not a physical structure and the plaintiff had not alleged a sufficient nexus to a physical place of public accommodation).

Numerous other recent decisions, however, have held that even businesses that sell solely through the Internet are subject to the ADA. See, e.g., Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (the ADA covers not only transactions taking place over the phone or through correspondence but also “applies with equal force to services purchased over the Internet”).

The argument that the ADA applies to websites is strongest where a retailer operates both a website and actual store locations. For example, in a case aimed at the Target Corporation, which sells through its retail locations as well as its website, a court held that the ADA did apply where a retail facility uses a website to facilitate customer access to its operations. The court found Target’s website allowed customers to purchase many of the items available in the company’s retail stores and also allowed customers to perform functions related to those stores, such as accessing information on store locations and hours, refilling prescriptions or ordering photo prints for pickup at stores, and printing coupons to redeem at the stores. The court held that the ADA “applies to the services of a place of public accommodation, not to services in a place of public accommodation.National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). The U.S. Court of Appeals for the Third Circuit found, in a different context, that Title III of the ADA applies as long as the plaintiff can demonstrate a sufficient connection between the discrimination alleged and a “physical place.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998).

In March 2016, a California state court ruled against luggage retailer Colorado Bag’n Baggage and in favor of a blind plaintiff who alleged that he was unable to use the store’s website. The court awarded the plaintiff only $4,000 for the ADA violation, but also ordered the defendant to pay the plaintiff’s attorney’s fees and costs. The court also required the defendant to make the website usable to visually impaired individuals or shut down its online retail store entirely.

The risk of liability under the ADA therefore is most substantial for businesses that operate brick-and-mortar stores and also have an e-commerce website allowing for online ordering. Such websites likely would be found to be subject to the accessibility standards of the ADA. But in light of the foregoing analysis, all companies, not just retailers, should begin reviewing the design of their websites to address any accessibility concerns.

How Can Businesses Make Their Websites ADA Compliant?

As referenced above, the DOJ has failed to issue comprehensive guidance as to whether and how websites must be made ADA compliant.

Notwithstanding this lack of official guidance, it is advisable for companies to start working now to make websites compliant with recommended industry standards and best practices.

Guidelines issued by the World Wide Web Consortium (W3C) have been advanced as appropriate standards for website accessibility. That organization’s Web Content Accessibility Guidelines (WCAG), version 2.0, are available online at w3.org/TR/WCAG20. Generally, the W3C standards recommend that websites:

  • Provide text alternatives for any non-text content so that it can be changed into other forms, such as large print or braille.
  • Provide alternatives to prerecorded video-only or audio-only content.
  • Create content that can be presented in different ways without losing information or structure.
  • Make it easier for users to see and hear content, including separating the foreground from the background.
  • Make all functionality available from a keyboard.

Companies should consult with their information technology staff and vendors to incorporate these suggestions into their website designs. They should also monitor technological developments to ensure accessibility going forward.

Further, it is advisable for companies to create or amend corporate policies with regard to ADA compliance to indicate their objective to remove barriers to accessibility online as well as in physical locations. All efforts to improve accessibility, including the standards to be employed and the timeline for those efforts, should be documented as such efforts are underway.

Devin Chwastyk, CIPP/US, is chair of the Privacy & Data Security group at McNees Wallace & Nurick LLC, where he counsels clients on preparation for and responses to data breaches. His practice otherwise is focused on complex commercial litigation, including the defense of class action lawsuits.

You can reach the author at dchwastyk@mcneeslaw.com with questions about the article.