One of the absolute hottest areas of ADA litigation is Internet accessibility for persons with disabilities. There are two questions.
First, whether the website has to be accessible at all?
Second, if it does have to be accessible, what are the legal standards?
The answer to the first question is probably the answer to the second question, that is there are best practices, a legal standard, but no real legal parameters to go by.
The Americans with Disabilities Act divides itself into five titles. Title I applies to employers of 15 or more employees. Title II applies to nonfederal governmental entities regardless of size with respect to their program, services, and activities. Title III applies to places of public accommodations. Title IV simply does not come up a lot and deals with telecommunications. Title V has miscellaneous provisions, such as interference and retaliation. Under title I, Internet accessibility is going to be governed by the rules of that title. So, the questions will become whether the employee is a person with a disability and whether the employee can do the essential functions of the job with or without reasonable accommodations. With respect to title II, case law is pretty clear, that the ADA applies to just about everything that a public entity does. Accordingly, if someone is trying to access a public entity’s website, that website must be meaningfully accessible to persons with disabilities. Finally, when it comes to Internet accessibility, you are really talking about three different groups of people: screen reader users; voice dictation users; and people needing captioning for videos.
Where you see most of the litigation is when it comes to figuring out what standard to use as a means of measuring compliance and when it comes to figuring out whether a business that is entirely on the Internet or associated with a brick-and-mortar store must have their website accessible to people with disabilities. Before proceeding further, you have to understand what a place of public accommodation is under title III of the ADA. That definition can be found in 42 U.S.C. §12181(7) and includes: places of lodging; establishments serving food and drink; places of exhibition and entertainment; places of public gathering, such as a museum or library; sales or rental establishments; service establishments; specified public transportation, such as terminals and depots; public display or collection; places of recreation, such as parks, etc.; places of education; social service center; and places of exercise or recreation (athletic in nature). The categories are exclusive but what is listed in the categories are not.
So, the question under title III of the ADA is whether the Internet is a “place of public accommodation?” The cases break down into four different categories and there are definite trends. The first category is that a place of public accommodation must be a physical place. See, Access Now, Inc. v. Southwest Airlines Company, 227 F. Supp. 2d 1312 (S.D. Fla. 2002). Keep in mind, this particular case has been overruled by Department of Transportation regulation.
The second category is that the Internet is always a place of public accommodations. That view was expressed by Judge Posner in Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999). This view has not taken hold. For starters, it is an extremely broad statement. Also, while it is significant that Judge Posner said it, the actual statement had nothing to do with the decision itself, i.e. dicta.
The third category is that the Internet is subject to the ADA when it acts as a gateway to a physical store. This view first came about in National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006). So, if the Internet site is a gateway to the physical store, then the Internet site must be meaningfully accessible to persons with disabilities. You do want to check your jurisdiction as those courts adopting this theory have some variations on how the gateway is applied.
The fourth category is the view that if the Internet site is performing any of the things contained in 42 U.S.C. §12181(7), then the Internet site is a place of public accommodation. I discussed one such case out of Vermont involving ScribD in my Understanding the ADA blog.
As for the majority theory, for a long time, it was the gateway theory. However, a strong argument can be made the theory that will prevail in the end is our fourth category, i.e. an Internet site performing any of the things contained in 42 U.S.C. §12181(7) must be meaningfully accessible to persons with disabilities. There are two reasons why I say that. First, in one case involving whether a kiosk had to be accessible to people with disabilities, the Department of Justice in a brief to the United States Supreme Court saying that they should not hear the case took the position that the proper view of what is a place of public accommodation was whether what was going on was of the type contained in 42 U.S.C. §12181(7). I discussed that brief in this Understanding the ADA blog entry.
The second reason is that the United States Supreme Court in South Dakota v. Wayfair Inc., has already signaled that is the direction they are going in. That signal did not come from a disability discrimination case at all, but rather from the Supreme Court decision saying that the State of South Dakota had the right to tax Wayfair Inc. for goods delivered into its state. In particular, several statements made in that decision strongly indicate that a place of public accommodation would be anything of the type contained in 42 U.S.C. §12181(7). In particular, consider the following, all of which you could also see in my blog entry on the topic. The quotes are taken directly from the Wayfair decision. The explanation after each quote I have revised a bit because the context is different here than it was in the blog entry.
- “The physical presence rule has been the target of criticism over many years from many quarters.” I have not done a law review survey of whether the few cases holding that the ADA title III provisions only applies to physical spaces have been the target of large-scale criticism. I have certainly criticized it in my Understanding the ADA blog. It would not surprise me if others have as well.
- “And while Nexus rules are clearly necessary, the Court should focus on rules that are appropriate to the 21st-century, not the 19th[citation omitted]. Each year, the physical presence rule becomes further removed from economic reality…” As the Court notes, “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted with no need for physical presence within the State in which business is conducted.”
- Paraphrasing, a physical presence rule creates rather than resolves market distortions. Certainly, that is true in the case of website accessibility litigation. That is, a holding that website only businesses do not have to comply with the ADA distorts the market because businesses with a physical presence do have to comply with an elaborate set of architectural guidelines. Such a policy creates a subsidy for Internet only business.
- “But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether companies happen to have a physical presence in the State… In other words, …, A small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller.” This is especially so when it comes to the ADA Architectural Guidelines for physical spaces, which can be quite involved.
- “And it is certainly not the purpose of the commerce clause to permit the judiciary to create market distortions.” Certainly, a get out of jail free card to website only businesses creates market distortions.
- Paraphrasing, worse still, [a physical presence]… rule produces an incentive to avoid physical presence in multiple States. That means the market might currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. True, the Supreme Court was referencing tax collection here, but the incentive is exactly the same when it comes to website accessibility.
- “… When the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety.” Also, paraphrasing here, modern e-commerce does not align analytically with a strict physical presence test. Again, the Supreme Court was referring to tax collection here, but the same analysis applies to website accessibility.
- “But it is not clear why a single employee or a single warehouse creates a substantial nexus while physical aspects of pervasive modern technology should not. For example, a company with the website accessible in South Dakota may be said to have a physical presence in the State via the customer’s computers. A website may leave cookies saved to the customers hard drives, or customers may download the company’s app onto their phones.” The impact of this paragraph on whether website only businesses must be accessible to persons with disability can’t be overstated. This particular paragraph strongly suggests that a customer when accessing a business on the web is actually in that place.
- “The dramatic technological and social changes of our increasingly interconnected economy means that buyers are closer to most major retailers than ever before-regardless of how close or far the nearest storefront.” Absent websites being accessible to persons with disabilities, persons with disabilities would not be able to say the same.
- A business may be present in the State in a meaningful way without that present being physical in the traditional sense of the term. A virtual showroom can show far more inventory, in far more detail and with greater opportunities for consumer and seller interaction than might be possible for local stores.” Further, “this Court should not maintain a rule that ignores the substantial virtual connection to the State.” Another indication that the Supreme Court recognizes that a person accessing an Internet only business is really in fact accessing that place in a way that may even be superior to being in the store itself.
- “Yet the physical presence rule undermines that necessary confidence by giving some online retailers and arbitrary advantage over their competitors….” That is, as mentioned above, website only businesses would not have to worry about accessibility for persons with disabilities but physical stores do.
- “Further, the real world implementation of commerce clause doctrines now makes it manifest that the physical presence rule… Must give way to the far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the cyber age.”.
- 89% of the American public has Internet access.
- “The Internet’s prevalence and power have changed the dynamics of the national economy.” Why should people with disabilities be excluded from that?
- “Last year, e-commerce grew up four times the rate of traditional retail, and it shows no signs of any slower pace.”
So, what you take from this, is that preventive law demands that whether the Internet is a place of public accommodation depends upon the type of thing going on on that Internet site. If it is of that type, then that website should be meaningfully accessible.
The problem is what does meaningfully accessible mean? The short answer to that question is we don’t know. Under the Obama administration, it wasn’t unusual for the Department of Justice to settle these kinds of cases and insist that the Web Content Accessibility Guidelines (WCAG), 2.0 be the standard for meaningful accessibility. Also, the Obama administration had proposed rules on this. However, before the rules could be finalized, President Trump was elected. His administration withdrew the rules, and in fact, the rules have now been placed on inactive status, and the administration has resisted congressional pressure to change its stance. Those rules also said that Web Content Accessibility Guidelines 2.0 were going to be the standard but the level that an entity had to meet might vary depending upon the size of the entity. All this said, I am seeing settlements where the parties agree that Web Content Accessibility Guidelines 2.0 (there is now a 2.1 as well), will be the standard for whether the Internet site is meaningfully accessible to persons with disabilities. There is also one case currently on appeal to the 11th Circuit where a District Court found that WCAG 2.0 was the standard for meaningful accessibility, but that District Court decision is an outlier. It will certainly be interesting to see what the 11th Circuit does. The 11th Circuit has a very strong record when it comes to people with disabilities.
The thing to remember about WCAG 2.0 is that it does not trump meaningful accessibility. For example, WCAG 2.0 might be lacking in parts with respect to voice dictation technology. The key is whether an individual with a disability has meaningful access to the site, assuming the site has to comply with the ADA.
WCAG 2.0 breaks down into four different principles: perceivable; operable; understandable; and robust. Perceivable is that content on your website has to be available to everyone viewing the website. Operable means the web design and overall interface can’t restrict a person with the disability’s use. Understandable means the website must be clearly understood by everyone. Robust means your website has to be accessible across browsers and devices. Finally, don’t forget that there are people with disabilities that don’t use keyboards or a mouse. Further, there are people with disabilities that might use voice dictation software, but also need captioning. For example, in the past, I have encountered websites where you could not use voice dictation technology if you wanted to take advantage of the captioning. That, to my mind, is not meaningful accessibility for a deaf/HOH person who uses voice dictation technology..
So, what are some of the things you can do? First, design the site from the get-go so that it is meaningfully accessible to persons with disabilities. Second, while the free stuff is nice and they might give you a ballpark as to what is out of compliance, hiring a consultant to do a deep dive into the website is probably better, albeit more costly. Third, stay away from drop-down boxes. They are a nightmare for accessibility. Fourth, any video should be captioned. Fourth, if you are going to hire someone to design your website and make sure that it is accessible, consider using an indemnification clause. Whether that indemnification clause will prevail may depend upon the jurisdiction you are in. Also, it is also possible that the company doing the web design would never agree to it. Also, remember that regardless of whether an indemnification clause exists, you more than likely have an independent obligation to comply with the ADA anyway. Fifth, have the website beta tested by persons with disabilities who use screen readers and voice dictation technologies. Remember, a person is not likely to use both screen readers and voice dictation technology. So, you are going to need different individuals. Also, it isn’t always true that what works for voice dictation technology works for screen readers and vice a versa. Sixth, while there are defenses to website accessibility suits, few of them are likely to succeed unless the Internet site is for certain members only, such as a credit union, and there is no way the plaintiff could ever be a member of that credit union. Finally, WCAG 2.0 is the gold standard, but the lack of formal rules mean flexibility exists as to how to achieve meaningful access for persons with disabilities.