In March 2022, the U.S. Department of Justice (DOJ) published web accessibility guidance under the Americans with Disabilities Act (ADA), which prohibits discrimination against people with disabilities and guarantees they will have the same ability as everyone else to enjoy opportunities, goods, and services.
Although the guidance establishes the DOJ’s intentions to ensure websites are accessible to all, it leaves several unanswered questions on exactly how businesses and governments can comply with the ADA.
Circuit Split
Courts around the country have come to conflicting decisions about whether the ADA applies to website accessibility. Courts in the U.S. 9th Circuit Court of Appeals (covering California and most other western states) held Domino’s violated the Act because its website and “app” weren’t fully accessible to visually impaired users. The court found the ADA applies when those websites and apps facilitate access to the goods and services of a place of public accommodation.
The 11th Circuit (which covers Alabama, Florida, and Georgia), by contrast, has held websites aren’t subject to the ADA as understood by the plain language of the statute. The court dismissed a visually impaired customer’s claims against a supermarket that its website didn’t have compatible screen-reader software in violation of the Act.
Federal courts in New York have landed on all sides of the debate. In conflict with other district court decisions in the state, a judge in the U.S. District Court for the Eastern District of New York recently decided stand-alone websites, not connected to a physical store, are not places of public accommodation subject to the ADA. A deaf person alleged Newsday violated the Act by failing to include closed captioning on its website videos. The court agreed with the company that stand-alone websites, not connected to physical stores, aren’t subject to the statute.
New Guidance
With the above legal uncertainty as a backdrop, the DOJ on March 18, 2022, released its guidance describing how state and local governments (Title II of the ADA) and businesses open to the public (Title III) can ensure their websites are accessible to people with disabilities as required by the Act. The department notes it has “consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”
The ADA requires web content to be accessible from both state and local governments and public accommodation businesses. The statute requires public accommodations to provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities. Public accommodations must take steps to provide appropriate communication aids and services when necessary to make sure they effectively communicate with individuals with disabilities.
The guidance lists examples of public accommodations subject to the ADA as well as communication aids and services that can assist those with disabilities. “Public accommodations” include retail stores, banks, hotels, hospitals and medical offices, food and drink establishments, and auditoriums and sports arenas.
The ADA applies to all goods, services, privileges, or activities offered by the public accommodations including those offered on their websites. “Communication aids” include services such as interpreters, notetakers, captions, assistive listening devices, screen readers, and voice recognition software to control computers with verbal commands.
To assist in making web content accessible to people with disabilities, the DOJ suggests businesses look at existing technical standards that the federal government uses for its own websites, such as the Web Content Accessibility Guidelines and the Section 508 Standards. In addition, the department provides businesses with “flexibility” in how to comply with the ADA general requirements for nondiscrimination and effective communication. The DOJ doesn’t have regulations setting out detailed standards for compliance. Instead, businesses may “choose” how they will ensure their online services are accessible to people with disabilities.
Bottom Line
The DOJ’s new guidance leaves the legal uncertainty around ADA web accessibility in place. Must all websites offering goods or services for sale comply with the Act? Or only those connected to a brick-and-mortar seller? The department doesn’t appear to answer the question.
It’s also unclear what “flexibility” encompasses or what options are available for businesses to “choose” to comply with the ADA. Unlike the DOJ’s detailed ADA Standards for Accessible Design, which give detailed and specific standards for how physical spaces can be designed to comply with the Act, the web-accessibility guidance points to multiple and potentially contradictory sources for what companies can do to make their website sufficiently accessible for the visually or hearing-impaired. With the questions unanswered, litigation around the issue will likely continue.
For more information on the ADA and web accessibility, please contact Genova Burns LLC partner Lawrence Bluestone, who specializes in complex commercial litigation, at lbluestone@genovaburns.com.