The American with Disabilities Act (the “ADA”) was signed into law in 1990 by George H.W. Bush and has caused a significant number of lawsuits alleging that company websites are not accessible to the blind or visually impaired in violation of Title III of the ADA prohibiting discrimination on the basis of disability in places of public accommodation.
Title III provides standards required for business physical locations to accommodate disabled individuals, but does not specifically provide guidance for the Internet, mobile or web-based applications. Nor does it limit coverage to brick-and-mortar location or exclude online, causing much confusion because Congress did not anticipate the crucial role the Internet would play in people’s lives in the 21st Century.
In the U.S., apart from federal, state, and local government websites which must meet ADA Section 508 regulations, there are no enforceable ADA legal standards to follow for website accessibility.
However, just because there is no straightforward set of legal requirements for website accessibility does not mean that your business will not be presented with a lawsuit. This has understandably raised alarm.
These lawsuits allege that private company websites qualify as places of public accommodations and that websites without compatible screen-reading applications deny plaintiffs the right to equal access and they have targeted businesses across many different industries. Some of these include retail, restaurants, health care, e-commerce, hospitality, entertainment, etc.
Neither the Department of Justice (the “DoJ”), tasked with enforcement nor Congress have adequately clarified the scope of the ADA in terms of website accessibility compliance for private companies. The DoJ and courts have provided some guidance on compliance, Congress has not.
As a disclaimer, this information is provided as a public service meant to help shed light on the confusion concerning websites being required to be ADA compliant and is not meant as legal advice. Every website and circumstance is different and you must check with your own legal advisors to determine if you may be at risk should you be served with a law suit. Nor is this article meant to guide you on what must be done to ensure your website complies with Title III and WCAG 2.1 guidelines.
The courts have been consistently clear that public spaces (websites) must comply with Title III, and follow WCAG 2.1 guidelines. When considering accommodation of public spaces, title III of the ADA states, “[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.”  Under U.S. Code 42, public accommodation is broadly defined as both public locations and private businesses, including theaters, shopping centers, bakeries, zoos, and more.  Therefore, Title III of the ADA intended to end any disability-based barriers to accessing the same basic goods and services that able-bodied Americans could easily obtain. While this title ensures equal access to public spaces and physical businesses, the legal interpretation of the word “place” is variable. A general consensus is that if the business has a physical space that must be ADA compliant, their website must also be compliant.
Where many businesses argue that the ADA only applies to services at or in spaces of public accommodation, recent judicial opinions have disagreed with this assertion and extended the ADA’s reach. In a 2012 lawsuit, National Association of the Deaf v. Netflix (2012), the National Association of the Deaf sued Netflix for not providing closed captions on their videos, rendering it inaccessible to hearing impaired users. The organization claimed that since all activity of Netflix occurred online and was available to the general public, it constitutes a public space; thus, section 3 of the ADA applied.  While Netflix ultimately settled the case and added captions to all videos, the federal district court for the Western District of Massachusetts established in initial hearings that it believed the ADA applied to online spaces.  When Netflix motioned to dismiss the case, the judge denied the motion, stating, “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.” He went on to clarify that the ADA does not only apply to physical spaces open to the public, but services available to all, including online services.
Are there exemptions?
Small Business Guidelines. Title I and Title III are the sections of the ADA most applicable to small companies. Title II refers only to public entities: federal, state and local governments.
Title I mandates that an employer cannot discriminate against employees based on their disability and requires employees to provide reasonable accommodations to allow them to perform their duties. The ADA defines an “employer” as a person who is:
- Engaged in an industry affecting commerce;
- Employs 15 or more full-time employees each work day;
- For at least 20 or more calendar weeks per year.
That means if you have 14 or fewer full-time employees, or the business operates less than 20 weeks per year, technically, you do not need to be ADA compliant.
Businesses entirely owned by a federally recognized Native American tribe are also exempt as is any tax-exempt private membership club or religious organization.
Title III also exempts private clubs, and religious organizations but focuses on what it considers “public accommodations” – those that provide goods or services to the public and requires that these businesses do not discriminate against customers based on disabilities. ADA established 12 categories of public accommodations including:
- Stores and shops,
- Restaurants and bars,
- Service Establishments,
- Theaters and hotels,
- Private Museums and schools,
- Doctor’s and Dentist’s offices,
- Shopping malls and other businesses.
Nearly any business that serves the public is included. Nearly every well-known brand has faced an accessibility lawsuit. Other frequent targets are Ecommerce, hotels, travel, healthcare, financial institutions, and educational facilities.
Upcoming targets are online courses, mobile and progressive applications. Lawsuits nearly tripled in 2018 exceeding 2250 up from 184 in 2017.
With no clear guidelines, it is up to the individual business to decide if providing an ADA compliant website is required or not.
However, regardless of the standards or lack of the same, making your website ADA compliant is the right thing to do. An estimated 19.4% or nearly 50 million people in the United States alone have non-institutionalized disabilities.
Visualize your life without the Internet. Now project that feeling into the millions of people with disabilities that are locked out of the Internet due to inaccessibility. These people live without the technology that most of us have come to depend on. If you consider the number of things you do on a daily basis that involves the internet, you will begin to understand what life for those with disabilities and non-accessible websites is like.
The world of visual disabilities is not divided only for the visually impaired and the blind. This world includes a variety of medical phenomena’s such as color blindness, cataracts, glaucoma and more. The experience of browsing in these cases is usually severely impaired - the color blind cannot perceive the picture as it really is, and some of the text will be displayed in their eyes in a color that will interfere with their reading. Not to mention a green button for approval and a red button to cancel, which a colorblind person just can't see.
There are many other disabilities that can be adversely affected by non-compliant websites. Those with epilepsy, dyslexia, cognitive impairment from stokes or medical problems, motor impaired and those with diseases like Parkinson’s or arthritis, or injuries can struggle with actions that seem trivial to the non-impaired.
So when you consider the question as to whether your website needs to be ADA Compliant or not, please consider the number of people you may be excluding from benefiting from your website and becoming a customer. Then consider what it will cost to upgrade your site to compliance and the possibility that you could face a lawsuit, which will likely cost you in fines and still require that you then make your site compliant.
So do you need to make your site ADA compliant? I think the only question is how quickly can you start the process if you have not already begun.
If you would like help or for us to provide you with and evaluation of potential issues with your website please do not hesitate to contact us.