The current prevalence of online business has raised numerous issues with older statutes that predate e-commerce. Recently, the frequency of litigation under the Americans with Disabilities Act of 1990 (ADA) in this area has brought attention to the issue of how to make websites accessible to those with disabilities. Unfortunately, modern regulatory guidance bringing the ADA into the twenty-first century to deal with the ever-evolving internet is lacking, and appears to be falling further behind rather than catching up.
Businesses continue to face increased risk of ADA litigation over accessibility of their websites by individuals with disabilities. The increase in litigation exposure comes after the Department of Justice (DOJ) announced on September 25, 2018 that the DOJ was evaluating whether the establishment of specific web accessibility standards through regulations was necessary and appropriate to ensure ADA compliance.
It is estimated that there will be in excess of 2,000 website accessibility lawsuits filed in federal courts in 2018. This represents a dramatic increase in the number of ADA accessibility lawsuits, and absent more legislation or regulatory guidance, the upward trend is expected to continue. There is currently a split of authority in the federal courts on whether websites are subject to the ADA accessibility requirements. Nevertheless, many federal circuits continue to allow plaintiffs to pursue ADA claims by denying early dismissal motions filed by website owners.
Content accessibility guidelines have been created in the private sector through the issuance of Web Content Accessibility Guidelines (WCAG), first published in 1999 by the World Wide Web Consortium, and updated in 2008 and again most recently in June 2018.
Despite bipartisan calls from members of Congress for the DOJ to declare that private website accessibility lawsuits are unfair and violate basic due process principles (due to the absence of clear statutory authority and regulatory guidance on accessibility standards), the risk to businesses continues to accelerate.
State of the Law
Title III of the ADA prohibits discrimination on the basis of disability by any person who owns, leases, or operates a place of public accommodation that would deprive disabled individuals of “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of a public accommodation. 42 U.S.C. § 12182(a). A private entity is considered a “public accommodation” for purposes of the ADA if its operations “affect commerce” and the entity falls into one of several enumerated business categories. 42 U.S.C. § 12181(7); 28 C.F.R. 36.104.
The ADA’s definition of “discrimination” includes specific prohibitions which impose an affirmative obligation on the part of public accommodations, unlike the mandate to refrain from certain acts commonly found in anti-discrimination statutes. 42 U.S.C. § 12182(b)(2)(A)(ii) – (iv). The specific prohibitions affecting use of websites by those with visual or aural impairments may include the failure: (1) to make “reasonable modifications in policies, practices, or procedures” when such modifications are necessary to afford “goods, services, facilities, privileges, advantages or accommodations” to individuals with disabilities; (2) to take such steps necessary to ensure disabled individuals are not excluded or denied services because of the absence of auxiliary aids and services; and (3) failure to remove communication barriers in existing facilities. Id.; see also Gorecki v. Hobby Lobby Stores, Inc., 2017 U.S. Dist. LEXIS 109123, at *8 (C.D. Cal. June 15, 2017).
Current regulations implementing guidance for compliance with affirmative obligations under the ADA list “auxiliary aids and services” that may be used to accommodate visual impairments, including “screen reader software.” 28 C.F.R. 36.303(b)(1) – (2), but does not specifically address websites. While the Department of Justice had previously announced that it would address the uncertainty surrounding compliance with a new rule titled “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of Public Accommodations,” the Trump administration placed the rule on “inactive” status in the spring of 2017, and it appears that no additional guidance will be forthcoming. Businesses are therefore required to rely on general ADA guidance in the context of website compliance, which jurisdictions around the country have interpreted with varying outcomes. See, e.g., Gorecki, 2017 U.S. Dist. LEXIS 109123, at *10 (“The lack of specific regulations does not eliminate [Defendant]’s obligation to comply with the ADA or excuse its failure to comply with the mandates of the ADA.”).
The Sixth Circuit, whose interpretation of the ADA in the context of website compliance will govern Kentucky businesses, has not yet applied the ADA to the issue of website accessibility. However, recent federal district court cases within the Sixth Circuit have interpreted the ADA to permit disabled web users to bring a cause of action under the ADA for discrimination if the website of a public accommodation does not permit equal access to those with disabilities. See, e.g., Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870 (N.D. Ohio 2018); Brintley v. Aeroquip Credit Union, 321 F. Supp. 3d 785 (E.D. Mich. 2018).
Currently, there is a circuit split regarding the necessary “nexus” between physical public accommodations and their websites to support an ADA claim. The disagreement between federal appellate courts centers on whether the plaintiff must show a connection between the website and the physical space maintained by the public accommodation. See, e.g., Gil v. Winn Dixie Stores, 242 F. Supp. 3d 1315, 1319 – 20 (S.D. Fla. 2017) (describing circuit split as disagreement as to whether public accommodations may be liable under the ADA for inaccessible websites regardless of any connection between the website and physical location). The Castillo Court opined that Sixth Circuit precedent placed it among circuits requiring a nexus to be shown, and held that where there is a demonstrated nexus between a website and the physical public accommodation, a court need not determine whether the website itself is a “public accommodation.” Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 881 (N.D. Ohio 2018); cf. Brintley v. Aeroquip Credit Union, 321 F. Supp. 3d 785 (E.D. Mich. 2018).
The plaintiff’s allegations in Castillo were sufficient to establish enough of a “nexus” between the defendant’s website and its physical business location to survive a motion to dismiss, and included assertions that defendant’s website permitted customers to make purchases and stated information about: physical store locations; sales, offers, and discounts both online and in-store; and product selection and information. Castillo, 286 F. Supp. 3d at 880; see also Brintley, 321 F. Supp. 3d at 793. Under the nexus theory, parts of a public accommodation’s website that may be inaccessible to those with disabilities, but which do not have a sufficient connection to the physical location of the public accommodation, do not support a cause of action under Title III of the ADA. See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006)(“To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA.”).
The remedy imposed on public accommodations found to have discriminated against disabled website users for failure to provide access is typically an injunction requiring the website to be made accessible to visually and aurally impaired users. 42 U.S.C. § 12188, 28 C.F.R. 36.501. Critically, however, the cost of compliance after a successful ADA lawsuit usually also includes payment of the plaintiff’s attorneys’ fees and costs, which can be exponentially greater than the expense of updating a website. 28 C.F.R. 36.505.
Where adherence to the ADA is required, it appears websites must be constructed so that they are accessible to the visually impaired using functional screen reader software, but in the current vacuum of specific technical guidance from federal regulators, there are no precise rules on what constitutes compliance. See, e.g., Robles v. Dominos Pizza LLC, 2017 U.S. Dist. LEXIS 53133, at *24 (C.D. Cal. Mar. 20, 2017)(finding that, despite the fact that the Department of Justice had sought public feedback on whether it should implement certain baseline compliance standards for website accessibility, there is currently no requirement that websites must meet that conformance level in order to comply with the ADA). Until mandatory compliance standards for websites are announced, any attempts to accommodate visually impaired users can be presented as an affirmative defense to a charge of discrimination under the ADA. See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006).
In the meantime, business owners should be aware that, depending on the nature of a business and whether it qualifies as a “public accommodation” under the ADA, choosing to maintain a website describing the products or services it offers may inadvertently expose the business to liability for failure to maintain a website accessible to visually and aurally impaired users. Additionally, business owners should keep in mind that, although federal regulators’ efforts to clarify exactly how they should comply have stalled under the Trump administration, any attempt at website compliance is better than making no effort, and could be significantly less expensive than being on the losing end of an ADA lawsuit.
 The Central District of California also noted in Gorecki that the Department of Justice has filed amicus briefs and statements of interest in ADA compliance suits throughout the country reiterating its position that the ADA applies to websites that meet the definition of a public accommodation and has initiated enforcement actions to force compliance. Gorecki, 2017 U.S. Dist. LEXIS 109123, at *11 (“See, e.g., Settlement Agreement, United States and edX, Inc. (April 2, 2015); Settlement Agreement, United States of America and Ahold U.S.A., Inc. and Peapod, LLC (November 14, 2014); Consent Decree, Nat’l Fed. Of the Blind, et al. v. United States of America v. HRB Digital LLC and HRB Tax Group, Inc., No. 13-cv-10799 (March 25, 2014); Statement of Interest of the United States, New v. Lucky Brand Dungarees Stores, Inc., 51 F. Supp. 3d 1284 (S.D. Fla. 2014); Statement of Interest of the United States, Nat’l Assoc. of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass 2012); Brief for United States of America as Amicus Curiae Supporting Appellant, Hooks v. OKbridge, Inc., 232 F.3d 208 (5th Cir. 2000); see also Dkt. 37, Pl.’s Req. for Judicial Notice, Ex. A-D.”).
For more information please contact Rachel Shelton at [email protected].