The Americans with Disabilities Act: Does your website need to comply?
By Adam Rodriguez, Esq.
Should you care if your business’ website is ADA compliant?
Absolutely. Litigating a website accessibility case can be expensive, even if you are ultimately successful on the merits. This is particularly true because the ADA provides for an award of attorneys’ fees to a prevailing party. It may be best to proactively address your website’s accessibility to ensure meaningful access for persons with disabilities. But, if you are sued, there are strong arguments that can be marshalled to defeat the claim or negotiate a favorable settlement. The lawyers at Bleakley Platt can help.
What does the ADA say?
The ADA states that “[n]o individual shall be discriminated against 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 by any person who owns, leases . . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The statute provides several examples of public accommodations, all of which are physical places, including an inn, a restaurant, a movie theater, etc. 42 U.S.C. § 12181(7).
Does the phrase “place of public accommodation” include your website?
Unfortunately, the answer may depend on what court you are in.
Notwithstanding the plain text of the ADA, Courts are split on this issue. For example, the Third Circuit has interpreted “places of public accommodation” narrowly, concluding that the ADA only applies to physical locations. In Peoples v. Discover Financial Services, Inc., 387 F. App’x 179 (3d Cir. 2010), the plaintiff—a blind man—sued a credit card company alleging fraud after he used his credit card for a prostitute’s services at her in-home business, resulting in her allegedly overcharging him and the card company refusing to credit his account for the disputed amounts. The Third Circuit held that, because the alleged discrimination did not happen on the defendant’s physical property, the claim was not cognizable.
Whereas the First Circuit, in Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994), held that public accommodations are not “limited to actual physical structures.” In Carparts, the plaintiff brought an action against the defendant health plan, alleging that a lifetime cap on health benefits for individuals with AIDS instituted by the health plan represented illegal disability discrimination. The First Circuit reversed the district court, holding that Congress did not intend for the ADA to apply only to physical structures.
The recent trend of federal caselaw seems to favor the defendants. For example, the Eleventh Circuit recently held in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), vacated as moot, No. 17-13467 (11th Cir. December 28, 2021), that the definition of “public accommodation” does not include websites, but instead only includes physical places. In that case, the plaintiff had a visual impairment, and used screen reading software to browse websites. But plaintiff’s screen reader software didn’t work with Winn-Dixie’s website’s prescription refill functionality.
The Second Circuit Court of Appeals has not squarely addressed the issue, and the district courts are split. For example, in Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995, at *2 (E.D.N.Y. Aug. 16, 2021), Judge Komitee concluded that the “ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations” from the definition of “public accommodations.” But a few months later, Judge Wood held that “that websites qualify as places of ‘public accommodation,’ albeit electronic ones, and, as such, are required to provide equal services to visually impaired and sighted people.” Romero v. 88 Acres Foods, Inc., 2022 U.S. Dist. LEXIS 9040, at *16 (S.D.N.Y. Jan. 18, 2022).
If the ADA Applies, Does Your Website Comply?
Maybe. If the ADA does apply to your website, it does not require conformity with any specific standard. In fact, the U.S. Department of Justice (“DOJ”) has made it very clear that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” Letter from Stephen E. Boyd, Asst. Atty. General, to Hon. Ted Budd, U.S. House of Representatives (Sep. 28, 2018).
Some courts have used the Web Content Accessibility Guidelines (“WCAG”) version 2.0 and 2.1 Level AA standards as a remedial measure for non-compliance. For example, in Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907 (9th Cir. 2019), the Ninth Circuit held that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” The consensus is that if a website adheres to this standard, it is sufficiently accessible to individuals with disabilities.
In addition, DOJ has taken the position that covered entities with inaccessible websites may comply with the ADA “by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site.” Nondiscrimination on the Basis of Disability, 75 Fed. Reg. at 43466. So, if your website provides keyboard accessible 24-hour chat and phone lines, for example, to address any accessibility issues that arise, you can mitigate the risk of potential non-compliance.
Adam Rodriguez focuses his practice in the areas of commercial litigation, municipal law, intellectual property and real estate. He currently serves as the Yorktown Town Attorney, acting as legal counsel to the Town, its elected officials, department heads, and its various boards. Before joining Bleakley Platt, Mr. Rodriguez was the Director of Real Estate for Westchester County, where he negotiated complex commercial real estate transactions valued at over $100 million. Prior to his appointment as Director of Real Estate, Mr. Rodriguez defended the County of Westchester in one of the highest-profile HUD enforcement actions in United States history. He has also served as a law clerk to two federal judges, and has worked as a litigator at a large law firm in New York City.