United States: Accessibility 2.0: The Applicability Of The ADA To The Internet As A Place Of Public Accommodation

I. Introduction

While a law student in 2001 I wrote an article opining that the "public accommodations" provision of Title III of the Americans with Disabilities Act applies to the Internet. I argued that a broad reading of the public accommodation clause in Title III, coupled with the supporting case law and the statute's legislative history, establishes that public accommodations are not limited to physical structures. The published article concluded that companies doing business with the public on the Internet via websites that lack compatibility with the technology visually disabled people use to access the Internet are liable for violating the ADA.

Fifteen years have passed since this article was published, but the issues raised in the article are proving more important today than ever. According to the Pew Research Center, only 52 percent of American adults used the Internet in 2000, around the time the article was originally written. In 2015, over 85 percent of American adults used the Internet. The Internet has grown at an unprecedented rate and has become an integral part of Americans' everyday lives.

Litigation surrounding website compliance under Title III has significantly increased in the last few years, with many plaintiffs and advocacy groups arguing that companies are violating Title III on the basis of disability because their websites lack certain functions that make them accessible to those with disabilities. Not only has the frequency of these cases risen in recent years, but the settlements to date in these cases have been high, with figures ranging well into the multimillion-dollar range.

Complicating the issue of compliance, the U.S. Department of Justice ("DOJ"), which is tasked with enforcing Title III, has not issued formal compliance guidelines on the matter and will likely not do so until 2018. Further, the courts have provided little clarity on the issue of whether websites constitute public accommodations under the ADA, as different jurisdictions have come to varying conclusions. To date, the issue has not come before the United States Supreme Court.

II. The Evolution of the Legal Landscape Since 2001

A number of courts have held that Title III accessibility requirements apply to websites maintained by businesses with facilities which are open to the public. The diverging court decisions generally fall under three main categories: (1) websites are not physical locations like the examples listed in the statute, so they cannot constitute public accommodations under the ADA; (2) websites may be considered public accommodations if there is a nexus between that website and a physical location that falls into one of the enumerated categories under the ADA; and (3) websites themselves can constitute public accommodations under the ADA, even if the websites do not have any nexus to a physical location.

The U.S. Court of Appeals for the Ninth Circuit, which governs California, recently issued a decision in Earll v. eBay, 599 F. App'x 695 (9th Cir. 2015) which falls into the first category. The Ninth Circuit held that eBay, a website not connected to any physical place, is not a "place of public accommodation" subject to the accessibility requirements of Title III of the ADA. While the Ninth Circuit's decision is groundbreaking for Internet-only businesses, it builds on previous cases that interpreted the ADA to pertain only to "actual, physical places."

A California Court in National Federation of the Blind v. Target Corporation, 425 F.Supp.2d 946 (N.D. Cal. 2006) issued an opinion which best exemplifies the "nexus approach" and falls into the second category of decisions. Plaintiffs in this class action lawsuit sued Target under the ADA, alleging the retailer's website was inaccessible to the blind. The court held that to the extent the plaintiffs in the lawsuit alleged the inaccessibility of the website impeded the full and equal enjoyment of goods and services offered in physical Target stores, the plaintiffs stated a viable claim. However, the court also held that information and services unconnected to physical stores could not form the basis of a claim under the ADA because they did not affect the enjoyment of goods and services offered in physical stores.

A Massachusetts Court in National Association of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012) has adopted the most expansive approach, issuing an opinion which falls into the third category. In that case, the National Association of the Deaf sued Netflix, seeking injunctive and declaratory relief to require the company to provide closed captioning for all streaming content. Although Netflix offers an entirely web-based service and does not have any physical retail locations, the court held that, at the very least, the website fell under the category of a "service establishment," which is an enumerated category under the ADA. The court stated that the legislative history of the ADA makes clear that Congress intended the ADA to evolve with the advancement of technology. As such, Congress did not intend to limit the ADA to the specific examples listed in the definitions.

The case law is still developing in many jurisdictions and countless companies will continue to face uncertainty regarding their website practices. The implication of this doctrinal split among the courts is that businesses with facilities that are open to the public that maintain a website and have a broad geographic presence face a patchwork of liability based on the location of any given plaintiff.

III. The Future of ADA Applicability to the Internet

The DOJ issued an advance notice of proposed rulemaking in 2010. The notice stated that the DOJ was considering whether to amend its regulations to require public accommodations that provide products or services to the public through websites to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA. The DOJ publication highlighted previous affirmations of the applicability of Title III to websites of public accommodations, including an amicus brief filed in the U.S. Court of Appeals for the Eleventh Circuit in Rendon v. Valleycrest Prods., 294 F.2d 1279 (11th Cir. 2002). The DOJ argued that a business providing services solely over the Internet is subject to the ADA's prohibitions on discrimination and specifically rejected the "nexus" approach, stating there did not need to be any connection between a challenged activity and a private entity's brick-and-mortar facility for Title III to apply. The DOJ has reaffirmed this expansive approach in statements of interest submitted in federal cases. 

The DOJ has also brought several enforcement actions against companies regarding the accessibility of their websites. These publications and enforcement actions strongly suggest the DOJ will opt for an expansive approach to coverage of websites under the ADA and will not require any nexus to a physical location. Additionally, while the proposed regulations will not be issued until 2018, the DOJ has taken the position that the general requirements of website accommodation for disabled individuals already exist. Thus, businesses that are open to the public must make their websites accessible, even though the DOJ has not issued formal regulations containing specific standards for website accessibility. 

There are several industry standards that businesses can consult to determine whether their websites are accessible to disabled consumers. Many resources, including the DOJ itself, have referenced Version 2.0 of the Web Content Accessibility Guidelines ("WCAG") published by the World Wide Web Consortium. These guidelines are the dominant industry standard for website accessibility and set forth a detailed framework of technical methods to satisfy accessibility criteria for individuals with visual, aural, and other types of disabilities. WCAG 2.0 is extensive, with guidelines including (1) providing text alternatives for any non-text content so that it can be converted into braille or speech by assistive programs; (2) ensuring all functions can be performed with a keyboard; (3) providing headings for content so users can navigate directly to their area of interest; and (4) providing resources for consumers if they have difficulty accessing certain content. Based on the DOJ's July 2010 Advance Notice of Proposed Rulemaking and recent DOJ settlement agreements, it is widely expected that the regulations will adopt the WCAG.

IV. Conclusion

In the wake of recent court decisions, businesses with facilities that are open to the public must be even more cognizant of the risks associated with maintaining a website that does not meet the generally recognized standards of accessibility for individuals with disabilities, most notably the visually disabled. There are several steps companies can take in order to reduce the risk of having to defend website ADA claims.

First, businesses should bring their websites into compliance with the Web Content Accessibility Guidelines 2.0. Second, businesses should consult with their insurance brokers to confirm that their insurance policies cover website ADA claims. Employment practices liability (EPL) policies are the policies that respond most often to website ADA claims. EPL policies typically cover claims brought by employees but can be broadened with optional coverage for discrimination and harassment claims brought by customers and other third parties. If a business' EPL policy includes third-party coverage, it should cover the cost to defend a website ADA claim. Other insurance policies such as media liability policies and cyber policies may also cover ADA website claims, but it is important for businesses to confirm ADA website claims are included within the scope of such policies. In addition, businesses should also determine whether their insurance policies cover the cost of settling a website ADA case.

At Lewis Brisbois, we work closely with businesses to evaluate their level of compliance with the WCAG guidelines by conducting a technical accessibility review of their current web content. This enables us to determine the steps our clients may need to take in order to achieve greater compliance under the ADA and, ultimately, to help our clients avoid the high costs associated with an unfavorable outcome at litigation. In the event litigation is unavoidable, we have the knowledge and experience to defend these actions and obtain favorable results for our clients.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions