Businesses are increasingly being sued under the Americans with Disabilities Act for operating websites that are not accessible to people with disabilities. Website accessibility case filings nearly tripled from 2017 to 2018. What started as a spike is now looking like a trend. And, since most businesses have websites, most businesses should be concerned.
Title III of the ADA generally prohibits places of public accommodation from discriminating on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations they provide. The ADA defines “public accommodation” to include various private entities that affect commerce, like restaurants, bars, hotels, theaters, banks, doctors’ offices, pharmacies, retail stores, grocery stores and shopping centers.
The ADA does not specifically address website accessibility because the Internet was in its infancy when the law was enacted in 1990. Nevertheless, the Department of Justice Civil Rights Division, which enforces Title III, has repeatedly taken the position that Title III applies to websites of public accommodations. Courts, however, are split on when a website is considered a place of public accommodation that is subject to Title III.
Some courts hold that Title III can apply to websites regardless of any connection to a physical place. Others, however, will not apply Title III without some connection between the website and a physical place. A connection that exists when a website is heavily integrated with and operates as a gateway to physical place.
Domino’s Pizza, for example, let people place orders for pick-up and delivery through its website and app. This was a sufficient connection to apply Title III because the website and app connected customers and facilitated access to the good and services available at Domino’s physical restaurants. The required connection may also be found if a website lets users:
- locate stores;
- view inventories (information, descriptions, images, etc.);
- place orders or pre-orders;
- purchase gift cards;
- learn about sales or promotions;
- obtain discount codes;
- sign-up for member rewards programs;
- manage store accounts; or
- interact with pharmacist or fill prescriptions.
It’s difficult to predict what other factors or features courts may consider when deciding whether a website must comply with the ADA because the law is still evolving. If the ADA does apply, how do businesses comply? Courts often refer to the Web Content Accessibility Guidelines (WCAG), which are private industry standards for website accessibility that have been adopted by other federal agencies. Unfortunately, the DOJ has yet to adopt these or any other guidelines for website and app accessibility under Title III of the ADA.
As a result, businesses have been left to navigate the ADA’s website accessibility requirements with little guidance. A lack of clarity has left many businesses exposed to a surge in lawsuits that is no doubt fueled by the current state of uncertainty.