In 1990 when Congress passed and President George H.W. Bush signed the Americans with Disabilities Act (“ADA”) into law, websites and mobile apps were the stuff of science fiction. Today, however, it is hard to find any company or non-profit that does not have a website and/or mobile app, leaving the courts to struggle with (1) whether Title III’s ban on disability discrimination applies to such electronic spaces at all, (2) if so, when does the law apply, and (3) what standards should be applied to determine whether these websites and mobile apps meet the ADA’s requirements. This article will discuss these three issues.
The courts have grappled with this threshold question and have adopted a number of different approaches. The three different approaches that have emerged from these cases include the following:
FIRST, some courts have read the ADA very broadly, reasoning that since the law was enacted to reduce discrimination, it must be read as a civil rights statute. As such, these courts have held that such websites are public accommodations that must comply with Title III. See e.g., Nat’l. Fed’n. of the Blind v. Scribd, Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) (“[E]xcluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA. . . .”).
SECOND, other courts have taken a somewhat more restrictive approach, holding that websites are subject to Title III only if there is a “nexus” between the website/app and the business’s physical location. See e.g., Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1116 (N.D. Cal. 2011) (“Facebook’s internet services thus do not have a nexus to a physical place of public accommodation for which Facebook may be liable under the statute.”). Under this approach, if, for example, a sports franchise such as the Pittsburgh Steelers sells tickets online and at the Stadium, it must ensure that a visually impaired individual can buy his/her ticket from the website.
THIRD, the final approach reasons that Title III has no application to websites/apps, that is, it applies only to physical spaces. See e.g., Access Now, Inc. v. Southwest Airlines Co., 227 F. Supp. 2d 1312, 1318 (S.D. Fl. 2002) (“[T]o fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure.”). These courts reason that it is up to Congress to revise Title III and expressly include websites within the law’s coverage.
Any hopes that the Department of Justice (DOJ), the agency charged with the enforcement of Title III, would resolve this conflict and, just as importantly, provide guidelines for businesses going forward regarding the steps they should take to comply with the law, have not materialized. On a number of occasions since 2010, the DOJ has announced it was preparing regulations on the issue, only to then announce as the date set for those regulations approached, that they were delaying their enactment. In fact, the DOJ recently stated yet again that rather than announcing its ADA website regulations as planned in April 2016, those regulations would not be promulgated until sometime in 2018.
The question, of course, is what steps businesses and non-profits that own and operate websites should take NOW in light of the DOJ’s inaction and the split in the courts on whether—and to what extent—the ADA is applicable to websites and mobile apps. Even entities located in jurisdictions such as the Third, Ninth, and Eleventh Circuits that only apply the ADA to websites that have a “nexus” to goods and services available at a physical location can take little comfort from this more restrictive view, since it is likely that since they are engaged in e-commerce many of those businesses will be subject to suit in nearly all jurisdictions. A review of several settlements reached between the DOJ and the owners/operators of a number of websites in the past 15 months suggests an answer to this “what to do now” question.
In February 2015, the DOJ announced settlements with a number of municipalities, including DeKalb, Illinois; Vero Beach, Florida; and the Isle of Palms, South Carolina. The DOJ announced that these settlements would “ensur(e) that [each City’s] online employment opportunities website and job applications (would) conform with the Web Content Accessibility Guidelines 2.0, which are industry guidelines for making web content accessible.” Similarly, in a settlement announced in January 2015 with the Washington, D.C. Crime and Punishment Museum, the DOJ stated that the settlement would “ensur(e) that [the Crime Museum’s] website conforms to the Level AA Success Criteria and Conformance Requirements of the Web Content Accessibility Guidelines 2.0.” Also in January 2015, the DOJ announced a settlement with Nueces County, Texas, stating that “the county will assess all existing web content and online services for conformance with industry guidelines—the Web Content Accessibility Guidelines (WCAG) 2.0—for making web content accessible.” These settlements came on the heels of a settlement the DOJ announced in November 2014 with the owners and operators of www.peapod.com, the Peapod grocery delivery company. Under that settlement, Peapod agreed that its website and mobile applications (1) would conform to the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), (2) that it would designate an employee as web accessibility coordinator to report directly to a Peapod executive, (3) that it would retain an independent website accessibility consultant to annually evaluate the accessibility of its website and mobile apps, and (4) that it would provide mandatory annual training on website accessibility for Peapod’s website content personnel. (The WCAG Guidelines can be found at www.w3.org/TR/WCAG20/.)
These settlements, coupled with the DOJ’s accompanying statements in its press releases, make it clear that despite its repeated delays in promulgating website/ADA regulations, the DOJ plans on aggressively enforcing Title III of the ADA. Moreover, the DOJ’s repeated references in these settlements to the WCAG 2.0 AA as an “industry guideline” and the “industry standard” appear to also to make it clear that the DOJ will consider inaccessible any website or mobile app that fails to meet these standards.
The conflicting case law, the DOJ’s continuing failure to finalize regulations to provide guidance, and these settlements between the DOJ and the owners/operators of websites bring us back to the question of what companies and non-profits should do now to lessen their exposure to demands, claims, and lawsuits under Title III of the ADA. While there is no single answer to this question that is applicable to all websites/apps, it does appear that, in order to be deemed sufficiently accessible under the ADA to persons with disabilities, websites and mobile apps should have some or all of the following features: