Web Accessibility: Public Accommodation Laws For Websites?

The Americans with Disabilities Act (ADA) was passed in 1990 to prohibit discrimination against individuals with disabilities in places of public accommodation. While the ADA does not explicitly mention websites, courts have been ruling in support of web accessibility, with some arguing that websites can be considered places of public accommodation even without a connection to a physical location. However, other courts have held that websites are not places of public accommodation under the ADA, as they are intangible spaces. This discrepancy has led to a circuit split, with the issue likely to be addressed by the U.S. Supreme Court in the future.

Do websites need to be closely connected to a physical place to be considered a place of public accommodation?

The question of whether websites need to be closely connected to a physical place to be considered a place of public accommodation is a complex one, with varying interpretations across different jurisdictions. The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities in various areas, including public accommodations. While the ADA does not specifically mention digital or web accessibility, its vague language has led to its application to websites in several lawsuits.

The interpretation of whether a website is a place of public accommodation under the ADA depends on the specific circumstances of each case. Some courts have held that a website must be closely connected to a physical place to be considered a place of public accommodation. For example, in the case of Gil v. Winn-Dixie Stores, Inc., the court determined that the plaintiff's inability to access the website did not create an "intangible barrier" to accessing the goods and services of the physical stores. The court noted that the plaintiff could still go to the physical stores and had full access to the goods and services.

On the other hand, courts in the First, Second, and Seventh Circuits have found that the ADA can apply to a website even without a connection to a physical space. In the cases of Andrews v. Blick Art Materials and Markett v. Five Guys Enterprises LLC, federal courts in New York held that websites selling goods were "places of public accommodation" under the ADA, regardless of whether the business had a physical location. These courts interpreted the ADA to include online places such as Netflix and Scribd, arguing that cyberspace is a place of its own in today's world.

The Department of Justice (DOJ), responsible for implementing the ADA, has not yet issued specific regulations on whether websites are considered places of public accommodation. However, the DOJ has taken the position that websites can be considered places of public accommodation.

Overall, the interpretation of whether a website needs to be closely connected to a physical place to be considered a place of public accommodation varies across different courts and jurisdictions. While some courts require a nexus between the website and a physical location, others have expanded the definition of "place of public accommodation" to include online spaces. This issue is likely to be addressed by the U.S. Supreme Court in the coming years as the circuits are split on this matter.

Can individuals with disabilities sue businesses with websites that don't meet Title III requirements?

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against individuals with disabilities in public accommodations and commercial facilities. Title III of the ADA, which applies to places of public accommodation, prohibits discrimination against individuals "on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations".

The ADA does not specifically mention websites or web accessibility. However, courts have been ruling in support of web and video accessibility, and it has been determined that websites are considered places of public accommodation under Title III of the ADA. This means that businesses with websites that do not meet Title III requirements may be sued by individuals with disabilities who are unable to access or use the website.

For example, in the case of Gil v. Winn-Dixie Stores, Inc., a legally blind grocery store patron brought an action against a grocery chain, alleging that its website was inaccessible to visually impaired customers because it was incompatible with screen reader software. The court determined that the patron had standing to bring a claim under Article III of the ADA because he had suffered an "injury in fact" by being unable to access the website.

Another example is the case of Andrews v. Blick Art Materials, where blind plaintiffs alleged that the website violated the ADA because it contained access barriers and was not fully usable by the blind. The court in this case concluded that websites are places of public accommodation under the ADA, and that businesses that do not make their websites accessible to disabled users do so at their own risk.

It is important to note that there is a split among federal courts regarding whether the ADA applies only to physical structures. Some courts have interpreted the ADA to require a close connection between a website and a physical place for it to be considered a place of public accommodation. However, other courts have found that websites, internet portals, and online stores are places of public accommodation under the ADA, regardless of whether they are connected to a physical location.

Overall, individuals with disabilities may sue businesses with websites that do not meet Title III requirements, and businesses should ensure their websites are accessible to individuals with disabilities to avoid potential legal issues.

What is the DOJ's position on website accessibility?

The Department of Justice (DOJ) has taken the position that the Americans with Disabilities Act (ADA) applies to web content and digital accessibility. This is despite the fact that the ADA, enacted in 1990, does not explicitly mention digital and website accessibility. The DOJ has released guidance to clarify where the law stands, and businesses must adhere to its guidelines on accessibility.

On March 18, 2022, the DOJ issued a press release on web accessibility guidance, explaining how to interpret web accessibility under the ADA. The guidance detailed the importance of web accessibility, the impact of barriers to web content, ADA requirements, and web accessibility tips. The DOJ has asserted that the ADA applies to digital accessibility, even though it doesn't legally define the bar for digital accessibility for non-federal entities.

The DOJ recommends deferring to the Web Content Accessibility Guidelines (WCAG) as a rubric for implementing and maintaining digital accessibility. The WCAG is an internationally recognized standard and is what federal entities and contractors are legally required to adhere to under Section 508. While businesses and state and local government entities are not bound to a specific set of guidelines, adhering to the recommended guidelines is the best way to mitigate potential legal problems.

The DOJ's latest rule on web accessibility, published on April 24, 2024, mandates "the adoption of specific technical standards for making accessible the services, programs, and activities offered by state and local government entities to the public through the web and mobile applications." The compliance deadline for state and local governments with a total population of 50,000 or more is April 24, 2026, while the deadline for entities with a population of fewer than 50,000 is April 26, 2027.

The DOJ has been involved in several cases related to website accessibility and has consistently taken the position that the ADA's requirements apply to all the services, programs, or activities offered by public accommodations, including those offered on the web. For example, in the case of Gil v. Winn-Dixie Stores, Inc., a legally blind grocery store patron brought an action against the company alleging an ADA violation based on its website being inaccessible to visually impaired customers. The DOJ determined that discrimination applies to the provision of goods and services of a place of public accommodation, rather than just those goods and services at or in a physical location.

While there is no legislation defining exactly how to make digital content accessible, and judges' rulings differ and sometimes contradict official guidance, the DOJ is working to clarify its position and assist businesses in achieving accessibility.

What is the current state of website accessibility compliance?

The current state of website accessibility compliance is a complex and evolving issue, with ongoing litigation and legislative developments. While the Americans with Disabilities Act (ADA) was passed in 1990, it did not anticipate the rise of the internet and digital spaces. As a result, there has been ongoing debate about whether websites are considered "places of public accommodation" and thus subject to the ADA.

In recent years, courts have increasingly ruled in support of web and video accessibility, interpreting the ADA to include digital spaces. This shift has been driven by two key factors. Firstly, the text of the ADA itself, which was intended by Congress to reflect the most current technology of a given time and address both physical and communication barriers. Secondly, the practical reality that websites and mobile apps are now essential places to shop, learn, share, and connect, and therefore should be protected by the ADA.

Despite these developments, the current state of website accessibility compliance remains inconsistent. While some courts have found that websites are places of public accommodation, others have concluded that they must be connected to a physical location to fall under the ADA. This discrepancy has led to a split among federal courts, with courts in New York, Connecticut, and Vermont taking a broader view, while courts in other states have adhered to a more narrow interpretation.

To address this inconsistency, the Department of Justice (DOJ) has taken steps to update and clarify the ADA's requirements for digital accessibility. In April 2024, the DOJ issued final standards for ADA Title II compliance, mandating that state and local governments ensure their websites and mobile apps adhere to the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA. While this update only applies to state and municipal governments, it signals the DOJ's renewed focus on web accessibility and sets a precedent for future interpretations of Title III, which applies to commercial websites.

In addition to federal legislation, several states have also taken steps to improve digital accessibility. For example, California's proposed Assembly Bill 1757 would make it unlawful for any resource provider to construct or maintain an internet website that fails to conform to the WCAG 2.1 Level AA accessibility standard. Similarly, Rhode Island has introduced bills requiring new public state websites to comply with WCAG 2.1 AA, while existing websites have until July 1, 2028, to meet the same standard. These state-led initiatives demonstrate a growing recognition of the importance of website accessibility compliance.

While the current state of website accessibility compliance is marked by ongoing legal and legislative developments, the overall trend indicates a growing awareness of the need to ensure digital spaces are accessible to individuals with disabilities. As technology continues to evolve, it is essential that legislation and compliance standards keep pace to protect the rights of individuals with disabilities and ensure their full and equal participation in online spaces.

What are the potential costs of making a website accessible?

The cost of making a website accessible can vary depending on several factors, and can range anywhere from a few thousand dollars to upwards of a million dollars. The price range for this online web service may range between $2,500 and $2.5 million. If your website has 25 to 50 pages, the cost of making your web accessible may vary from $25,000 to $75,000.

The cost of making a website accessible is based on various factors, including the number of unique pages, layouts, third-party integrations, dynamic and interactive elements, media richness, and more. Websites with many pages, complex layouts, and numerous third-party integrations will likely require more time and financial resources to become accessible.

Additionally, websites with interactive features such as user registration, forms, or checkout options can add to the overall cost. Media-rich websites, such as those with numerous images, PDFs, or videos, will also require additional work to ensure accessibility.

It's important to consider that making a website accessible may require custom work, which can be expensive. However, there are ways to keep the costs down, such as doing some manual tasks in-house (e.g., adding alt text to images, creating closed captions for videos) and opting for financing options like payday loans, especially for small-scale or start-up businesses.

Furthermore, the cost of making a website accessible can be influenced by whether it is a new site or an existing one. Building accessibility into a new site can be more cost-effective than fixing an existing site, as existing sites may require additional work to ensure compliance with accessibility standards.

Incorporating accessibility from the beginning of the website development or redesign process is generally more efficient and cost-effective than making improvements later on. Organizations should also consider the potential return on investment and cost efficiencies that can result from making their websites accessible, as it can lead to increased website use, expanded market reach, and improved brand image.

Frequently asked questions