United States: Websites, Kiosks, And Other Self-Service Equipment In Franchising: Legal Pitfalls Posed By Title III Of The Americans With Disabilities Act

Websites, mobile applications, and electronic self-service machines provide exciting and efficient ways for franchised businesses to deliver information, goods, and services to customers, but they also present thorny compliance issues under the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against individuals with disabilities public accommodations (i.e., private entities that do business with the public)1 and requires them to take affirmative steps to ensure that individuals with disabilities have equal access to their goods and services. This article reviews the most common types of customer-facing electronic information technology (EIT) that franchisors and franchisees are using, the murky and evolving legal requirements that apply to them, the legal controversies that have arisen in connection with their use, and what can be done to ensure legal compliance.

I. Customer-Facing EIT Used by Franchised Businesses and the Accessibility Challenges They Present for Individuals with Disabilities

Customer-facing EIT has become commonplace in many franchised businesses. The most common types of EIT are websites and mobile applications (mobile apps). These websites and mobile apps allow customers to perform a variety of tasks, such as reserving hotel rooms, ordering food and beverages at quick service concepts, accessing loyalty accounts, paying for and researching goods and services, and finding store locations.

Once inside a place of business, customers are likely to encounter some type of electronic self-service machine, such as point of sale devices (POS), registration kiosks, ticket kiosks, self-checkout registers, iPads or tablet devices for placing orders, soda dispensers, vending/rental machines for various products, interactive facility directories, price scanning devices, coupon dispensers, water bottle return stations, and even key making machines. The possibilities are endless.

The use of electronic self-service machines can pose serious challenges for individuals with disabilities. People with certain types of disabilities find it difficult or even impossible to use websites or mobile apps that are not designed to be accessible to them. Blind individuals could access websites with screen reader software that translates on-screen text into audio that can be heard or Braille which appears on a refreshable Braille display. With audio or tactile cues, they could navigate the website using the tab key because they cannot simply point and click with the mouse. However, screen readers only work well (if at all) if the websites are designed to work with them, and most websites presently are not. As a result, blind users often have difficulty navigating sites, filling out forms, and identifying the function or significance of certain links or images. Individuals with low vision who do not use a screen reader may not be able to read text when there is insufficient contrast between the text and background. Color-blind individuals cannot see color cues often used by web designers to convey information (e.g., red for form fields with errors). Deaf individuals cannot perceive the audio content of videos without captioning. Individuals with limited manual dexterity may not be able to use a mouse and need to navigate websites using only a keyboard.

Like websites, mobile apps must also be designed with accessibility principles in mind to be usable by individuals with disabilities. All iOS and Android-based mobile devices have built-in screen reader capabilities that can be turned on by the user, but mobile apps will work only if they are designed to do so. Unfortunately, some, if not most, designers do not consider accessibility limitations when designing their mobile apps.

Like websites and mobile apps, most electronic self-service machines in the marketplace can be difficult or impossible to use by customers who are blind or have limited mobility. Smooth touch screens displaying virtual keys and information, which are commonly used as the customer interface for many types of electronic self-service machines without any tactile assistance, are barriers to blind people. Many self-service machines sell or rent products that can only be identified by sight, making them unusable by blind people. Self-service machines can also present accessibility barriers for individuals who use wheelchairs or scooters. Because they are seated in their mobility devices, these individuals typically cannot reach as high or as low as a person who is in a standing position. They also cannot see display screens that are placed higher than their line of sight and often angled upwards for a standing user.

II. Legal Requirements for Customer-Facing EIT

A. Statute and Regulations Applicable to EIT

Title III of the ADA states that no person "who owns, leases (or leases to), or operates a place of public accommodation" may discriminate on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 2 Although this non-discrimination mandate appears similar to those in other civil rights laws prohibiting discrimination based on other protected classes (i.e., race, gender, and national origin), it is actually much broader. The drafters of the ADA recognized that individuals with disabilities may need accommodations to have full and equal access to the goods and services offered by a public accommodation. Accordingly, the ADA requires public accommodations to provide at no additional cost "appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities," unless the public accommodation "can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense."3

The principle underlying the "effective communication" requirement is that a person with a disability must be able to effectively communicate with a public accommodation in order to have equal access to all that a public accommodation offers to other members of the public. For example, a student who is deaf cannot understand what is being taught in class unless the aural information is translated into an accessible format such as sign language or text. Likewise, a blind customer who cannot read a menu will need to have the menu read aloud or translated into Braille.

In its first set of regulations issued in 1991 to implement Title III of the ADA, the U.S. Department of Justice (DOJ) provided a non-exclusive list of "auxiliary aids and services" that a public accommodation may need to provide to ensure effective communication with an individual with a disability.4 At that time, the Web was in its infancy and few electronic self-service machines existed. Thus, the list of auxiliary aids and services did not reference websites or other EIT. However, when the DOJ revised its ADA Title III regulations in 2010, it expanded the definition of the term "auxiliary aids and services" to include "accessible electronic and information technology."5 Websites, mobile apps, and other types of electronic self-service machines fall under this EIT umbrella.

Even with the 2010 revisions, the ADA Title III regulations still do not contain an explicit mandate that websites, mobile apps, or any other EIT machines must be accessible—other than automated teller machines (ATMs), fare vending machines (e.g., subway farecards), vending machines, and fuel dispensers for which there are technical legal standards. Moreover, the regulations do not provide any guidance on what accessibility features an accessible website, mobile app, or electronic self-service machine must have. Instead, the regulations simply require public accommodations to furnish "appropriate auxiliary aids and services" and provide a long menu of auxiliary aids and services that a public accommodation may provide after consulting with the individual with a disability about his or her preferred method of communication.6 In fact, the regulations state that

the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.7

B. Recent Regulatory Developments Relating to Websites and Mobile Apps

When it issued revised Title III regulations in 2010 to include accessible EIT in the long list of auxiliary aids and services that a public accommodation may need to provide, the DOJ also announced that it would be issuing regulations addressing the websites of public accommodations under Title III of the ADA as well as the websites of state and local governments under Title II of the ADA. The DOJ's announcement came in the form of an Advanced Notice of Proposed Rulemaking (ANPRM).8 In it, the DOJ explained that

Although the Department has been clear that the ADA applies to websites of private entities that meet the definition of "public accommodations," inconsistent court decisions, differing standards for determiningWeb accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by Title III. For these reasons, the Department is exploring what regulatory guidance it can propose to make clear to entities covered by the ADA their obligations to make their websites accessible.9

The DOJ explicitly recognized in this ANPRM that a public accommodation need not always make its website accessible in order to comply with Title III of the ADA. It stated,

The Department has taken the position that covered entities with inaccessible websites may comply with the ADA's requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity's alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.10

The DOJ also clarified in the ANPRM that websites of businesses that have no brick-and-mortar locations but that provide the types of goods and services identified by Title III's definition of "place of public accommodation" are still covered under the ADA.11 The DOJ went on to ask for public comment on key questions that the website regulation would have to address, such as how much time public accommodations should have to comply with any new website accessibility standard as well as what that accessibility standard should be.12

The DOJ's request for public comment on these questions naturally led most businesses to conclude that they would have time to make their websites conform to the accessibility standard that the DOJ ultimately adopts in a final rule. Most also decided that they should wait to see what that standard is before spending significant resources on redesigning their websites.

More than six years have now passed since the DOJ issued the ANPRM, and the DOJ has yet to issue even a proposed regulation, let alone a final rule on the websites of public accommodations or state and local governments. In its most recent regulatory agenda issued before the 2016 Presidential election, the DOJ announced that it would issue a proposed rule relating to accessible websites for public accommodations in 2018.13 It is highly unlikely that the DOJ will issue any proposed regulations during the Trump administration in light of the President's Executive Order imposing drastic limitations on new regulations.14

Disability rights advocates have become increasingly frustrated by the lack of regulatory progress and have turned to the courts in recent years to forge a different path to website accessibility, as discussed in Part III below. Likewise, DOJ attorneys responsible for enforcing Title III of the ADA during the Obama administration also aggressively pushed the website accessibility agenda by opening investigations into the accessibility of various websites and demanding that their owners make their websites accessible now, even in the absence of any regulations.

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Footnotes

1. The term "public accommodation" is a term of art defined in the ADA and the question of whether a private entity falls within the definition has been the subject of many lawsuits. The statute lists twelve categories of private entities that are covered, such as places of lodging, establishments serving food or drink, or sales or service establishments. 42 U.S.C. § 12181(7). Because most franchised businesses are likely to fall within the twelve categories, this article does not address the threshold question of coverage.

2. 42 U.S.C. § 12182(a).

3. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a).

4. 28 C.F.R. § 36.303(b).

5. Id.

6. 28 C.F.R. § 36.303(c)(1)(ii).

7. Id.

8. Advance Notice of Proposed Rulemaking on Non-discrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460 ( July 26, 2010).

9. Id. at 43464.

10. Id. at 43466 (emphasis added).

11. Id. at 43461–63.

12. Id. at 43464–67.

13. See Department of Justice, Fall 2015 Statement of Regulatory Priorities, available at http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html.

14. See Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs (Jan. 30, 2017), available at https://www.whitehouse.gov/the-press-office/2017/01/30/ presidential-executive-order-reducing-regulation-and-controlling.

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