Driven by the pandemic, many brick and mortar businesses have rapidly undergone a digital transformation with new online service offerings, mobile applications, and expanded websites. And, while companies comply with the Americans with Disabilities Act’s (“ADA”) physical access regulations, many may be overlooking ADA requirements that affect their daily business online.

As website traffic has increased during the pandemic, web accessibility lawsuits against businesses under the ADA have skyrocketed. ADA demand letters to companies whose websites fail to cater to persons with disabilities viewing the businesses’ goods, services, and offerings online have grown exponentially.

While these lawsuits have caused headlines with U.S. Supreme Court decisions against large companies such as Domino’s Pizza, most actions are usually aimed at unsuspecting smaller and medium-sized businesses. This makes it more critical than ever to take a proactive approach to address accessibility issues.

In this series, Technology and the ADA: Website Accessibility, we will provide an overview of what businesses are subject to such lawsuits, what enforcement looks like, what steps can reduce exposure, and what to do if a demand letter is received or a lawsuit is filed.

Part I outlines how and why the ADA regulates your company’s website and can be found here.

In this post, Part 2 of the series, we will offer an overview of which companies are vulnerable to these lawsuits and the guidelines used to address web accessibility obstacles. At a glance:

  • Certain commercial businesses that are generally open to the public have a legal duty to make their websites accessible to the disabled.
  • These businesses must provide individuals with physical and mental disabilities with an equal opportunity to engage in and benefit from a website or application.
  • No federal regulations expressly address website access, although courts and regulators have required companies to adhere to specific industry standards.

1. Is my website at risk for an ADA accessibility lawsuit?

Just like business owners are to maintain a physical environment accessible by all, the same covers public accommodations’ websites.

Title III of the ADA prohibits discrimination based on disability in the activities of places of public accommodations, meaning commercial businesses that are generally open to the public and fall under at least one of the 12 categories listed below.

While Title III of the ADA does not deal explicitly with websites, the Department of Justice (DOJ) has reaffirmed that business owners have legal obligations to make their websites accessible to the disabled.

    • Lodgings (e.g., inns, hotels, motels) (except owner-occupied less than six rooms);
    • Food or drink (e.g., restaurants and bars);
    • Entertainment (e.g., movie picture houses, theaters, concert halls, stadiums);
    • Public gathering (e.g., auditoriums, convention centers, lecture halls);
    • Sales or rental (e.g., bakeries, grocery stores, hardware, shopping centers);
    • Service establishments (e.g., banks, shops, travel agencies, accountants or lawyers’ offices, insurance offices, health care providers, hospitals);
    • Public transportation terminals, depots, or stations (excluding air transportation);
    • Places of public display or collection (e.g., museums, libraries, galleries);
    • Recreation (e.g., parks, zoos, amusement parks);
    • Education (e.g., nursery schools, elementary, secondary, undergraduate, postgraduate private schools);
    • Social service center establishments (daycare centers, senior citizen centers, homeless shelters, food banks); and
    • Places of exercise or recreation (gymnasiums, health spas, bowling alleys, golf courses).

However, there are entities exempt from Title III, such as:

    • (i) religious entities and entities controlled by a religious organization, such as a place of worship, and daycares; and
    • (ii) private clubs that offer exclusive membership, high fees and, require a detailed application process.

2. What does accessible mean?

Web accessibility means making web content and mobile applications more accessible so that people with disabilities can use them. This means providing an equal opportunity to participate and benefit from a site or application for those with physical and mental impairments related to vision, hearing, speech, mobility, mental or psychological disorders.

Accessibility includes information that helps navigate, interpret, understand, and interact with the website or application, such as text, images, sounds, and code or markup that defines structure, presentation, etc.
The DOJ has reaffirmed that the goods, services, privileges, or activities provided by places of public accommodation be equally but NOT identically accessible online to people with disabilities, meaning websites have to provide an equal opportunity to participate in goods/services but does not have to guarantee an identical result or level of achievement for persons with disabilities. However, discrimination definitions set by the ADA include the “failure to make reasonable modifications.”

3. What guidelines need to be followed?

While there are no federal regulations specifically addressing the accessibility of websites, the ADA, enacted in the ’90s before the internet was a staple of our daily lives and business operations, has expanded to cover accommodations associated with websites, apps, and other online content. The courts and regulators have required businesses to follow the adopted industry standard known as Web Content Accessibility Guidelines 2.0 and 2.1 (WCAG 2.0 and WCAG 2.1). This guideline is designed to make websites and applications accessible to people with disabilities. You can learn more about it from The World Wide Web Consortium (W3C), which develops international web standards. 

Why Should I Care?

California is second in the nation in website accessibility lawsuit filings, and the number of cases filed is up from the prior year. Taking proactive steps such as auditing communication and service obstacles in policies, employee trainings, and online platforms can guide the effective implementation of Web Content Accessibility Guidelines (WCAG) and accessibility aids.

If you have already received an ADA website demand letter or lawsuit or have any questions about ADA obligations and how they affect your company’s website, please contact AlvaradoSmith business attorney Monisha Coelho at mcoelho@alvaradosmith.com or 213.229.2400.

Monisha Coelho represents clients – from startups to multinational corporations – in commercial and corporate matters and litigation before state and federal courts. Monisha advises companies on CCPA and CPRA compliance, enforcement, risk mitigation, and litigation. She is licensed to practice law in India and advises clients on cross-border US-India business transactions, litigation, and data privacy matters. 

 

DISCLAIMER: The information contained herein is intended for informational purposes only and should not be construed as professional counsel or legal advice. Seek legal counsel for advice with respect to any legal matter. The information in this document may not reflect the most current developments as the subject matter is extremely fluid and may change daily. The content and interpretation of the issues addressed herein are subject to change.