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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.