United States: Accessibility 2.0: The Applicability Of The ADA To The Internet As A Place Of Public Accommodation

I. Introduction

While a law student in 2001 I wrote an article opining that the "public accommodations" provision of Title III of the Americans with Disabilities Act applies to the Internet. I argued that a broad reading of the public accommodation clause in Title III, coupled with the supporting case law and the statute's legislative history, establishes that public accommodations are not limited to physical structures. The published article concluded that companies doing business with the public on the Internet via websites that lack compatibility with the technology visually disabled people use to access the Internet are liable for violating the ADA.

Fifteen years have passed since this article was published, but the issues raised in the article are proving more important today than ever. According to the Pew Research Center, only 52 percent of American adults used the Internet in 2000, around the time the article was originally written. In 2015, over 85 percent of American adults used the Internet. The Internet has grown at an unprecedented rate and has become an integral part of Americans' everyday lives.

Litigation surrounding website compliance under Title III has significantly increased in the last few years, with many plaintiffs and advocacy groups arguing that companies are violating Title III on the basis of disability because their websites lack certain functions that make them accessible to those with disabilities. Not only has the frequency of these cases risen in recent years, but the settlements to date in these cases have been high, with figures ranging well into the multimillion-dollar range.

Complicating the issue of compliance, the U.S. Department of Justice ("DOJ"), which is tasked with enforcing Title III, has not issued formal compliance guidelines on the matter and will likely not do so until 2018. Further, the courts have provided little clarity on the issue of whether websites constitute public accommodations under the ADA, as different jurisdictions have come to varying conclusions. To date, the issue has not come before the United States Supreme Court.

II. The Evolution of the Legal Landscape Since 2001

A number of courts have held that Title III accessibility requirements apply to websites maintained by businesses with facilities which are open to the public. The diverging court decisions generally fall under three main categories: (1) websites are not physical locations like the examples listed in the statute, so they cannot constitute public accommodations under the ADA; (2) websites may be considered public accommodations if there is a nexus between that website and a physical location that falls into one of the enumerated categories under the ADA; and (3) websites themselves can constitute public accommodations under the ADA, even if the websites do not have any nexus to a physical location.

The U.S. Court of Appeals for the Ninth Circuit, which governs California, recently issued a decision in Earll v. eBay, 599 F. App'x 695 (9th Cir. 2015) which falls into the first category. The Ninth Circuit held that eBay, a website not connected to any physical place, is not a "place of public accommodation" subject to the accessibility requirements of Title III of the ADA. While the Ninth Circuit's decision is groundbreaking for Internet-only businesses, it builds on previous cases that interpreted the ADA to pertain only to "actual, physical places."

A California Court in National Federation of the Blind v. Target Corporation, 425 F.Supp.2d 946 (N.D. Cal. 2006) issued an opinion which best exemplifies the "nexus approach" and falls into the second category of decisions. Plaintiffs in this class action lawsuit sued Target under the ADA, alleging the retailer's website was inaccessible to the blind. The court held that to the extent the plaintiffs in the lawsuit alleged the inaccessibility of the website impeded the full and equal enjoyment of goods and services offered in physical Target stores, the plaintiffs stated a viable claim. However, the court also held that information and services unconnected to physical stores could not form the basis of a claim under the ADA because they did not affect the enjoyment of goods and services offered in physical stores.

A Massachusetts Court in National Association of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012) has adopted the most expansive approach, issuing an opinion which falls into the third category. In that case, the National Association of the Deaf sued Netflix, seeking injunctive and declaratory relief to require the company to provide closed captioning for all streaming content. Although Netflix offers an entirely web-based service and does not have any physical retail locations, the court held that, at the very least, the website fell under the category of a "service establishment," which is an enumerated category under the ADA. The court stated that the legislative history of the ADA makes clear that Congress intended the ADA to evolve with the advancement of technology. As such, Congress did not intend to limit the ADA to the specific examples listed in the definitions.

The case law is still developing in many jurisdictions and countless companies will continue to face uncertainty regarding their website practices. The implication of this doctrinal split among the courts is that businesses with facilities that are open to the public that maintain a website and have a broad geographic presence face a patchwork of liability based on the location of any given plaintiff.

III. The Future of ADA Applicability to the Internet

The DOJ issued an advance notice of proposed rulemaking in 2010. The notice stated that the DOJ was considering whether to amend its regulations to require public accommodations that provide products or services to the public through websites to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA. The DOJ publication highlighted previous affirmations of the applicability of Title III to websites of public accommodations, including an amicus brief filed in the U.S. Court of Appeals for the Eleventh Circuit in Rendon v. Valleycrest Prods., 294 F.2d 1279 (11th Cir. 2002). The DOJ argued that a business providing services solely over the Internet is subject to the ADA's prohibitions on discrimination and specifically rejected the "nexus" approach, stating there did not need to be any connection between a challenged activity and a private entity's brick-and-mortar facility for Title III to apply. The DOJ has reaffirmed this expansive approach in statements of interest submitted in federal cases. 

The DOJ has also brought several enforcement actions against companies regarding the accessibility of their websites. These publications and enforcement actions strongly suggest the DOJ will opt for an expansive approach to coverage of websites under the ADA and will not require any nexus to a physical location. Additionally, while the proposed regulations will not be issued until 2018, the DOJ has taken the position that the general requirements of website accommodation for disabled individuals already exist. Thus, businesses that are open to the public must make their websites accessible, even though the DOJ has not issued formal regulations containing specific standards for website accessibility. 

There are several industry standards that businesses can consult to determine whether their websites are accessible to disabled consumers. Many resources, including the DOJ itself, have referenced Version 2.0 of the Web Content Accessibility Guidelines ("WCAG") published by the World Wide Web Consortium. These guidelines are the dominant industry standard for website accessibility and set forth a detailed framework of technical methods to satisfy accessibility criteria for individuals with visual, aural, and other types of disabilities. WCAG 2.0 is extensive, with guidelines including (1) providing text alternatives for any non-text content so that it can be converted into braille or speech by assistive programs; (2) ensuring all functions can be performed with a keyboard; (3) providing headings for content so users can navigate directly to their area of interest; and (4) providing resources for consumers if they have difficulty accessing certain content. Based on the DOJ's July 2010 Advance Notice of Proposed Rulemaking and recent DOJ settlement agreements, it is widely expected that the regulations will adopt the WCAG.

IV. Conclusion

In the wake of recent court decisions, businesses with facilities that are open to the public must be even more cognizant of the risks associated with maintaining a website that does not meet the generally recognized standards of accessibility for individuals with disabilities, most notably the visually disabled. There are several steps companies can take in order to reduce the risk of having to defend website ADA claims.

First, businesses should bring their websites into compliance with the Web Content Accessibility Guidelines 2.0. Second, businesses should consult with their insurance brokers to confirm that their insurance policies cover website ADA claims. Employment practices liability (EPL) policies are the policies that respond most often to website ADA claims. EPL policies typically cover claims brought by employees but can be broadened with optional coverage for discrimination and harassment claims brought by customers and other third parties. If a business' EPL policy includes third-party coverage, it should cover the cost to defend a website ADA claim. Other insurance policies such as media liability policies and cyber policies may also cover ADA website claims, but it is important for businesses to confirm ADA website claims are included within the scope of such policies. In addition, businesses should also determine whether their insurance policies cover the cost of settling a website ADA case.

At Lewis Brisbois, we work closely with businesses to evaluate their level of compliance with the WCAG guidelines by conducting a technical accessibility review of their current web content. This enables us to determine the steps our clients may need to take in order to achieve greater compliance under the ADA and, ultimately, to help our clients avoid the high costs associated with an unfavorable outcome at litigation. In the event litigation is unavoidable, we have the knowledge and experience to defend these actions and obtain favorable results for our clients.

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