By Christine Malafi
The Internet has become a necessity for the marketing and promotion of businesses, services, and merchandise. An evolving legal issue is website accessibility for those with disabilities and the applicability of Title III of the Americans with Disabilities Act (“ADA”). Accessibility of public websites and compliance with the ADA in connection with public websites may cause issues for some time to come, especially given the lack of governmental regulations and guidance in this area. Nevertheless, it’s important for businesses to know where the law currently stands, as well as any potential liabilities which may arise from a failure to be in compliance.
The rise in legal cases brought on by allegations
of the failure to provide ADA accessibility for websites has risen drastically.
So far in 2019, over 350 New York area businesses have been impacted.
Additionally, from 2017 to 2018, ADA website lawsuits increased a staggering
177%, rising from 814 in 2017 to 2,258 in 2018. It was New York State that led
the nation in this increase, with 1,564 ADA website lawsuits made in New York
during 2018.
The purpose of the ADA is to provide equal
opportunity to individuals with disabilities, as well as to stimulate business
by increasing the purchasing power of those with disabilities. Title III of the
ADA specifically prohibits discrimination of individuals with disabilities “in
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public
accommodation.” While the ADA is silent on the specific issue of website
accessibility, case law has made it clear that the ADA applies to public
websites, and businesses must accommodate individuals with disabilities and
make their websites ADA accessible. Yet the extent to which websites must be
made accessible has not been definitively determined. In December 2015, the
Department of Justice (“DOJ”) announced that it would issue private sector
website ADA accessibility regulations during fiscal year 2018. However, a 2018
Presidential Executive Order cut regulatory resources and subsequently froze the
DOJ’s public accommodations website rulemaking, leaving many businesses unsure
what the regulations will be. Questions remain as to whether all websites fall
under the ADA and whether a website must also be tied to a physical location
before it falls under the ADA, among others. However, recent Court decisions
may help to shed some light on a company’s responsibilities.
In Robles
v. Domino’s Pizza, LLC, 913 F.3d 898 (2019), the 9th Circuit
Court of Appeals decided that the ADA applied to Domino’s Pizza’s website, that
they had received fair notice they were not in compliance with the ADA, and
that due process did not require the DOJ to issue specific guidelines for ADA
compliance for Domino’s to be liable for failure to comply. In this specific
case, the Plaintiff was unable to order online using the Domino’s website due
to inaccessibility for screen readers, although a live person was available by
phone to assist in the placement of an order; but, since the website
facilitated access to a place of public accommodation, Domino’s was required to
follow ADA guidelines. The 9th Circuit further stated that both
websites and mobile applications had to satisfy a business’s obligations under
the ADA. This case is significant because the Court considered, but rejected,
the defense that the alternate option of a telephone hotline was sufficient to
satisfy a company’s obligations under the ADA.
The 9th Circuit took a stricter
position on the application of ADA guidelines to a website or mobile app, which
is tied to a physical location, than the more expansive positions taken by
Courts in Massachusetts, New York, and Vermont, holding that as a “place of
public accommodation,” the alleged inaccessibility of Domino’s website and
mobile app unlawfully prevented customers from accessing goods and/or services
at their physical locations. This decision reversed the district court’s
dismissal of the lawsuit and, although considered an outlier among similar
Court decisions, could set precedent in determining similar lawsuits in the
future.
Therefore, in the continued absence of DOJ
regulations, and in light of the 9th Circuit’s decision, what should
businesses do? Many settlements approved by the DOJ have implemented the World
Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to
make a website more accessible. At the most basic level, an ADA accessible
website should provide these (and other) types of features:
- Text alternatives for any
non-text content;
- Alternatives for time-based
media;
- Content that can be presented
in different ways (for example simpler layout) without losing information
or structure;
- Be easy to see and hear,
including separating foreground from background;
- Permit all functionality from a
keyboard if needed (as opposed to a cursor);
- Permit sufficient time to read
and use content;
- Not be designed in a way that
is known to cause seizures or physical reactions;
- Include ways to help users
navigate, find content, and determine where they are;
- Allow users to operate
functionality through various inputs beyond the keyboard;
- Provide text content that is
readable and understandable;
- Have web pages operate and
appear in predictable ways;
- Help users avoid and correct
mistakes; and
- Maximize compatibility with
current and future user agents, including assistive web technologies.
The best option for business owners to not
fall victim to a successful Title III suit is to comply with these WCAG
guidelines.
However, it may not always be deemed
“reasonable” for businesses to create a fully ADA compliant website. As is
stated in the ADA: “A public accommodation shall make reasonable modifications
in policies, practices, or procedures, when the modifications are necessary to
afford goods, services, facilities, privileges, advantages, or accommodations
to individuals with disabilities, unless the public accommodation can
demonstrate that making the modifications would fundamentally alter the nature
of the goods, services, facilities, privileges, advantages, or accommodations.
“ 28 C.F.R. § 36.302
(2012).
If making your website fully compliant with
the WCAG is too costly for your company, other options may be available.
Although New York courts have yet to address this specific issue, others have.
In National Federation of the Blind v. Target Corp., Target was sued
because its website did not enable visually impaired persons to directly
purchase products, redeem gift cards, or find stores. The court ruled
against Target, as Target failed to show that the information on its website
was available in another reasonable format. The court acknowledged ADA defines
discrimination to include a failure to take such steps “as may be necessary to
ensure that no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals because of
the absence of auxiliary aids and services, unless the entity can demonstrate
that taking such steps would fundamentally alter the nature of the goods,
service, facility, privilege, advantage, or accommodation being offered or would
result in an undue burden.” 42 U.S.C.S. § 12182(b)(2)(A)(iii).
The court specifically noted the following examples of accessibility: “if a
menu cannot be read by a blind person, the restaurant need not make the menu
available in Braille; the restaurant could ensure that waiters are available to
explain the menu”; and “while a bookstore must ensure that it communicates with
its customers in formats which accommodate the disabled, a bookstore is not
required to stock books in Braille.” Courts therefore recognize that there may
be significant limitations on the possibility of making a website completely or
fully ADA accessible.
The Court in Robles v. Domino’s Pizza, LLC, held that an alternative means of
access to a website has to be proven sufficient and effective in assisting
customers who are disabled. This could prove to be a costlier endeavor than
making the website itself accessible, and businesses should take this into
consideration when they are deciding how best to make their websites compliant
with ADA guidelines.
Absent further guidance, businesses and
individuals with public business websites are urged to ensure accessibility. At
CMM, we are available to assist and guide you on this issue.
