by Monna Lea Bryant, Robert Sniffen, and Jeff Slanker
Retailers and businesses may soon need to begin preparing for a new public accommodations issue related to an altogether different kind of access barrier: websites. The U.S. Department of Justice (DOJ) is developing a plan to amend Titles II and III of the Americans with Disabilities Act (ADA) to require websites to become accessible to disabled users. The DOJ is concerned about the accessibility of websites operated by public entities, such as state and local governments, which are subject to Title II of the ADA, as well as those run by private-sector businesses actively involved in e-commerce, which may or may not be covered by Title III of the ADA. 
Law on public accommodations
Individuals are statutorily protected from being denied access to public places or receiving poor service or lower-quality accommodations because of their race, color, national origin, sex, disability, familial status, or religion. The ADA is the federal statute that provides those protections to all U.S. citizens, and the many states have similar laws. Title III of the ADA prohibits discrimination on the basis of a disability by “places of public accommodation.”
Title III of the ADA is interpreted, for the most part, consistently with the public accommodations provision of many state laws and serve the consistent purpose of prohibiting discrimination and access barriers in places of public accommodations to individuals with disabilities. Although the statutes were constructed to afford expansive protections, the evolution of society inevitably uncovers new access barriers that weren’t issues when the ADA and most state laws were implemented. Despite the laws’ expansiveness, they will need to be amended to catch up with the changing times.
Background of Internet accessibility regulations
In 2010, the DOJ released an Advance Notice of Proposed Rulemaking (ANPRM) on website accessibility. The agency solicited comments on costs and alternatives to making websites accessible to individuals with disabilities, receiving approximately 440 public comments.
In its fall 2015 Statement of Regulatory Priorities, the DOJ again addressed website accessibility and discussed its plan to “amend its regulation implementing [T]itle II of the ADA to require public entities that provide services, programs or activities to the public through Internet [websites] to make their sites accessible to and usable by individuals with disabilities.”
The DOJ is considering the changes in light of the ever-evolving electronic marketplace and increased disadvantage to individuals without website access, noting:
The Internet as it is known today did not exist when Congress enacted the ADA, yet today the Internet plays a critical role in the daily personal, professional, civic, and business life of Americans. The ADA’s expansive nondiscrimination mandate reaches goods and services provided by public accommodations and public entities using Internet [websites]. Being unable to access [websites] puts individuals at a great disadvantage in today’s society, which is driven by a dynamic electronic marketplace and unprecedented access to information.
The agency is planning to separately publish Notices of Proposed Rulemaking (NPRMs) addressing Title II and Title III website accessibility. It currently expects to publish its Title II NPRM early in fiscal year (FY) 2016 and its Title III NPRM during FY 2018.
It’s unclear what measures the DOJ will ultimately determine are necessary to make websites more accessible to individuals with disabilities. Some changes might include requirements to remove Completely Automated Public Turing Test to Tell Computers and Humans Apart (CAPTCHA) from computerized forms or add voice recognition or other keyboard commands.
The Web Accessibility Initiative (WAI) has created voluntary international guidelines for website accessibility to provide guidance on how sites can be more accessible to individuals with disabilities. The DOJ is using the WAI’s Web Content Accessibility Guidelines (WCAG), available at www.w3.org/WAI/intro/wcag.php, to ground some of the conversations surrounding its Title II and Title III rulemaking proceedings.
What it means for businesses
As the DOJ’s rulemaking proceedings progress at a slow pace, companies involved in e-commerce should be prepared for affected individuals to use the legal system to address their concerns. With so much left in the hands of the slow-moving DOJ rulemaking process, it’s difficult to predict when and how any changes to Title II and Title III of the ADA will alter website accessibility. However, the information currently available makes one thing clear: Public accommodations cases are on the rise, and we can expect that trend to continue if and when the DOJ amends the ADA.
Robert J. Sniffen is the founder and managing partner of the Tallahassee firm of Sniffen & Spellman, P.A. He may be contacted at rsniffen@sniffenlaw.com.
Jeff Slanker is an attorney with Sniffen & Spellman, P.A., in Tallahassee. He can be contacted at jslanker@sniffenlaw.com.
Monna Lea Bryant is an attorney with Sniffen & Spellman, P.A., in Tallahassee. She may be contacted at mbryant@sniffenlaw.com.