United States: Hunton Employment & Labor Perspectives: The Muddy Waters Of ADA Website Compliance May Become Less Murky In 2019

The Scope of the Issue

The Americans with Disabilities Act (the "ADA") has been the source of a tremendous amount of litigation since President George H.W. Bush signed it into law in 1990. Over the past few years, Plaintiffs' counsel have developed a cottage industry of sorts by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in "places of public accommodation." 42 U.S.C. § 12182(a). While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that: (1) private company websites qualify as places of public accommodation; and, (2) websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access. Plaintiffs have also challenged the accessibility of mobile applications and online job application interfaces.

Very often, a single Plaintiff's attorney and sometimes the same disabled individual will file dozens or more lawsuits against many different companies alleging technical violations of Title III, and seek injunctive relief (e.g., for the company to make its website ADA accessible) and attorneys' fees that are authorized by the statute. These lawsuits have targeted businesses across a number of industries, including retail stores, restaurants, health care providers, and e-commerce companies. This glut of litigation over alleged technical ADA website compliance violations has frustrated the courts,1 and, thus far, neither Congress nor the Department of Justice (the "DoJ"), the primary federal government agency responsible for enforcing the ADA, have adequately clarified the scope of the ADA in terms of website accessibility compliance for private companies.

The crux of the problem is that when the ADA was enacted, Congress did not adequately anticipate the crucial role that the internet would have in peoples' lives in the 21st Century, and instead focused on discrimination based on disability that occurred in person or through personal interactions. Title III provides the standards required for businesses' physical locations to properly accommodate disabled individuals, but does not provide guidance for the internet, or web-based and mobile applications. Nor does Title III expressly limit its coverage to brick-and mortar locations or exclude online locations.

Courts have come to different conclusions regarding whether Title III's coverage is limited to physical spaces and whether a company's website requires a nexus to a physical location to be subject to Title III's protections. This uncertainty and lack of clarity regarding Title III's scope is problematic for businesses that want to comply with Title III's requirements, but do not necessarily want to foot the hefty bill for updating their websites consistent with the "gold standard" stated in the Web Content Accessibility Guidelines ("WCAG") established by the World Wide Web Consortium ("W3C") with the state of the law in flux.

While the courts and the DoJ have provided some guidance on these issues, Congress has not. 2 The remainder of this post will analyze the current state of the law, recent efforts to lobby for clarification of the ADA and better guidance, and potential court interpretation and agency clarification of Title III that may occur in 2019.

The Current State of the Law and Agency Guidance

Title III and Recent Efforts to Amend the ADA

Title III requires private sector businesses that serve as "places of public accommodation" to remove "access barriers" that inhibit a disabled person's access to goods and services. Generally, any private business with more than 15 employees is subject to the ADA, including the requirements in Title III. However, Title III does not directly address whether places of public accommodation include websites, mobile applications, or other web-based technologies.

Due to the increase in ADA website accessibility lawsuits and negative media coverage about them, the U.S. House of Representatives, by a 225-195 vote, passed legislation in February 2018, the ADA Education and Reform Act of 2017, that would have amended the ADA to force prospective plaintiffs to first provide written notice of noncompliance to public accommodations – such as businesses operating public websites – before filing suit. The company would then have 60 days to come up with a plan to address the plaintiff's concerns. However, that bill stalled in the Senate, where 43 Senators – enough to filibuster the bill – pledged in writing to block a vote on the Act. Therefore, it is unlikely to become law anytime soon, especially given the results of the midterm elections.

Case Law

The courts are split regarding whether Title III's definition of "public accommodations" is limited to physical spaces. Courts within the First, Second, and Seventh Circuit Courts of Appeals have found that a website can be a place of public accommodation independent of any connection to a physical space. Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994); Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012); Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed'n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999). The Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have held that places of public accommodation must be physical places, but that goods and services provided by a public accommodation (which may include through websites) may fall within the ADA if they have a sufficient nexus to a physical location. Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1349 (S.D. Fla. 2017); Haynes v. Dunkin' Donuts LLC, 2018 WL 3634720, at *2 (11th Cir. July 31, 2018); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Earll v. eBay, Inc., 599 F. App'x 695, 696 (9th Cir. 2015); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Peoples v. Discover Fin. Servs., Inc., 387 F. App'x 179, 183 (3d Cir. 2010); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997)).

The results have been mixed for defendants that chose to fight these cases, with courts commonly refusing to dismiss these cases except in limited circumstances. Gil v. Winn Dixie, which went to a bench trial in June 2017, is the first ADA website accessibility case to go to trial, and the first in which a judge ordered a business to comply with a particular standard, the WCAG 2.0 guidelines. The U.S. District Court for the Southern District of Florida found that Winn Dixie's website was a place of public accommodation because it was largely integrated with its physical store locations, and noted that the website services identified by the plaintiff in his complaint were directly related to physical stores. The court held that Winn-Dixie's website violated the ADA because it was not sufficiently accessible to visually impaired customers, and issued injunctive relief stating that the website must conform to the criteria in WCAG 2.0, and that any third-party vendors who interact with Winn Dixie's website must also comply with WCAG 2.0.

Winn Dixie appealed to the Eleventh Circuit Court of appeals, which held oral argument on October 4, 2018. Winn Dixie argued that: (1) websites are not places of public accommodation under Title III of the ADA; (2) the WCAG are not law and the trial court's adoption of those guidelines violated due process; and (3) Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie's stores. The Eleventh Circuit will likely issue its opinion in the first months of 2019, which can potentially, and significantly impact the landscape of website accessibility cases within the Eleventh Circuit (Alabama, Florida, and Georgia) by clarifying or definitively adopting a standard (e.g., the WCAG) under which courts will analyze whether a company's website is ADA accessible.

The Plaintiff's win in June 2017 in the Winn-Dixie case has seemingly fueled the recent surge of ADA website accessibility litigation.

Agency Guidance

Since 2003, the DoJ has issued, and then abandoned, several phases of agency guidance that attempted to articulate a uniform position regarding ADA website accessibility. While the DoJ's guidance has been a bit uneven and stunted, it has consistently stated that websites must be accessible to disabled persons.

On September 25, 2018, Assistant Attorney General Stephen E. Boyd, sent a letter in response to a June 20, 2018 letter from a bi-partisan group of 103 members of the U.S. House of Representatives, requesting clarity on "unresolved questions about the applicability of the ADA to websites" which have "created a liability hazard that directly affects businesses in our states...." The DoJ responded:

The Department first articulated its interpretation that the ADA applies to public accommodations' websites over 20 years ago. This interpretation is consistent with the ADA's title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities. Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute's requirements. Absent the adopting of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA's general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.... Given Congress' ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.

Therefore, the DOJ's current position is that Title III applies to all publicly-accessible websites used by companies that otherwise qualify as places of public accommodation, and companies can make their website accessible by any means, which may include but is not limited to, complying with WCAG 2.0, Level AA requirements (discussed in more detail below). Until Congress acts to clarify the ADA, courts and regulators will likely continue to cite the WCAG as the "gold standard" for ADA compliance.

WCAG 2.0 Compliance

As stated above, courts have relied on WCAG 2.0 and the DoJ has relied more specifically on WCAG 2.0, AA Conformance for determining whether a website violates Title III. WCAG 2.0 outlines four principles for website accessible design. In short, websites must be:

  • Perceivable, which means users must be able to perceive the information being presented;
  • Operable, which means that users must be able to operate the interface;
  • Understandable, which means that users must be able to understand the information as well as the operation of the user interface;
  • Robust, which means that users must be able to access the content as technologies advance.

Further, there are differing levels of conformance within WCAG 2.0, the "Success Criteria":

  • Level A (WCAG 2.0 A), the minimum level of conformance;
  • Level AA (WCAG 2.0 AA), the level generally relied on by the DoJ and the courts;
  • Level AAA (WCAG 2.0 AAA), the maximum level of conformance; and
  • a conforming alternative version of a non-conforming page that satisfies a least one of the above levels in full.

Websites must also be completely in conformance, and cannot achieve conformance if part of a website is excluded. Further, all the information presented by, and the functionality of, web content technologies (such as HTML, CSS, and JavaScript) must be supported by accessibility web content technologies. For more information on the five requirements for WCAG 2.0 conformance, see W3C's WCAG's Success Criteria, which are designed to allow online content to be tested to determine whether it satisfies the requisite criteria for a conformance level. Testing should involve a combination of automated testing and human evaluation.

In June 2018, the W3C released WCAG 2.1, which caused further confusion for businesses trying to decide what standard to follow. However, the DoJ's September 25, 2018 statement confirmed that the important decision for businesses is not whether to comply with a certain set of guidelines, but whether a disabled person can access the company's goods, services, and benefits through its website.

Looking Forward to 2019

Unfortunately for businesses, there is no magic bullet for website accessibility compliance and many website fixes can be cost-prohibitive for some companies. Many of these ADA website accessibility lawsuits have focused on larger businesses with perceived deeper pockets, likely because plaintiffs' counsel believe these businesses are more willing to pay small settlements to dispose of these cases. Therefore, many smaller businesses that operate websites have opted to monitor developments until the Congress, the DoJ, or another agency provides better guidance. However, larger, more conservative businesses seeking to minimize litigation risk are often opting to retain a reputable web designer to ensure the company's full compliance with WCAG 2.1 (or 2.0), or at least work toward that goal.

The DOJ's letter suggests that it does not view compliance with every aspect of WCAG 2.0, Level AA as required under the ADA. Instead, "public accommodations have flexibility in how to comply with the ADA's general requirements of nondiscrimination and effective communication." Ideally for businesses, courts, especially those fed up with congestion on their dockets due to these ADA website accessibility cases, will use the DoJ's guidance as a basis to dismiss website accessibility lawsuits against companies who have made an earnest effort toward being accessible for disabled persons, even if their efforts have not been perfect. The DoJ's letter offers businesses some flexibility in crafting ways to be accessible. In addition to working toward website compliance, some businesses have also chosen to demonstrate accessibility by providing a 24/7 phone number to provide the kind of information otherwise available on their websites.

Ultimately, the DoJ's letter has placed the burden back on Congress to legislate regarding ADA website accessibility. However, it is unlikely that it will take any action any time soon. While the DOJ's letter is helpful for businesses, it will not stop these ADA website accessibility lawsuits. Therefore, businesses should take proactive steps toward making their websites accessible. Employers must also remember that their failure to make online job applications accessible to blind or disabled job applicants may subject them to liability under Title I of the ADA, which prohibits discrimination in hiring decisions, and which carries with it additional remedies such as compensatory damages (to pay a plaintiff for out-of-pocket expenses caused by the discrimination and compensate him/her for any emotional harm suffered), and punitive damages.

Finally, while case law may offer some clarification to Title III's requirements, the U.S. Supreme Court has not indicated that it intends to take up the Circuit Courts of Appeals' split any time soon. Therefore, a business that operates a website and conducts business across multiple states may desire to further compare its website format with both agency and judicial guidelines discussed above to further evaluate risk.

Footnotes

1 For example, one Austin lawyer was sanctioned $230,000 and was suspended from practicing law in the U.S. District Court for the Western District of Texas for, among other things, filing approximately 385 lawsuits on behalf of one disabled client, alleging technical violations of the ADA, including inadequate website compliance.

2 Many states – including Alabama, Arizona, Arkansas, California, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming – have also passed legislation or published guidance governing website compliance. Of those states, many have chosen to adopt WCAG standards. This post will focus on updates in federal law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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