Given the lack of formal guidance on website accessibility under the Americans with Disabilities Act (ADA), “www” might as well stand for the “Wild, Wild, West.” Twenty-five years after ADA first passed, there are still unclear guidelines in place for how companies should make their websites accessible to disabled visitors. Plaintiffs have taken advantage of this uncertainty—and the series of recent enforcement actions and statements of interest issued by the Department of Justice (DOJ)—by bringing a flurry of suits against retailers.

As website accessibility lawsuits continue to rise, retailers cannot afford to wait for formal guidance before taking steps to protect themselves.

Background on Accessibility Lawsuits

These cases are not new. In 2006, for example, the National Federation of the Blind brought suit against Target, claiming that the retailer violated Title III because blind people were unable to access much of the information on the defendant’s website, nor purchase anything from its website independently. In September 2008, the parties settled for a $6 million class reward; the judge later awarded $3.7 million in attorney’s fees and costs.

The more recent cases are based on the same basic premise: they claim that by failing to make their websites accessible to blind or deaf visitors, the sites violate Title III of the ADA, which imposes upon places of public accommodation an obligation to “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” Although these lawsuits have arisen across the country, a substantial number are filed in California under both the ADA and California’s Unruh Civil Rights Act, which provides for up to $4,000 in penalties per violation.

In the last year or so, at least thirteen website accessibility lawsuits have been brought in the Central District of California alone. The vast majority of these lawsuits involve retailers and the vast majority of these cases settled almost immediately after they were filed (before filing a response or attending a case management conference).

Retailers Forced to Rely on Limited DOJ Guidance

Until recently, the only guidance in this area came from an Advanced Notice of Proposed Rulemaking (ANPRM) that the DOJ issued in 2010, in which it announced that it would issue new regulations under Title III of the ADA to address the accessibility of public accommodations websites. The proposed rule was expected to be released this year, but has since been delayed until April 2016 (though a recent DOJ statement of interest emphasizes that there is no scheduled date for publication of a final rule). The DOJ is expected to issue specific regulations applicable to Title II ADA entities (such as universities) before then; these regulations may shed light on how the DOJ plans to approach its Title III rule.

In the absence of formal guidance, retailers should look at a series of recent DOJ consent decrees and statements of interests for direction on how to comply with the ADA. In general, the DOJ has recognized the W3C Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) as a standard for compliance. WCAG 2.0 calls for companies to provide text alternatives for non-text content; provide captions and other alternatives for multimedia; create content that can be presented in different ways, including by assistive technologies, without losing meaning; make it easier for users to see and hear content; make all functionality available from a keyboard; give users enough time to read and use content; not use content that causes seizures; help users navigate and find content; make text readable and understandable; make content appear and operate in predictable ways; help users avoid and correct mistakes; and maximize compatibility with current and future user tools.

Under the WCAG 2.0, there are three levels (A, AA, and AAA) that a company can attain, based on how successfully it meets the standards. Last year, the Department of Transportation adopted WCAG 2.0 Level AA as the legal standard that governs the websites of airline carriers under the Air Carrier Access Act.

The DOJ first published guidance on website accessibility in March 2015 as part of its legal agreement with H&R Block. The DOJ had alleged that H&R Block violated the ADA by denying disabled individuals full and equal enjoyment of online and mobile tax-preparation materials and services. In the consent decree, the DOJ called on H&R Block to meet many of the WCAG 2.0 standards, including using captions, text alternatives, audio descriptions, and other mechanisms to make the website more accessible. Additionally, the agreement imposed a series of administrative requirements. H&R Block agreed to:

  • Appoint a Web Accessibility Coordinator reporting directly to the Chief Information Officer, who will provide regular reports about the Web Accessibility Program;
  • Establish a Web Accessibility Committee;
  • Adopt a Web Accessibility Policy;
  • Maintain a disabled-accessible mechanism for website visitors to provide comments, recommendations, and questions regarding accessibility of the website;
  • Implement procedures to provide customer assistance to disabled customers;
  • Train employees responsible for website content on accessibility requirements;
  • Test all web content for accessibility before it is put into production; and
  • Retain a third-party accessibility consultant.

Additionally, in November 2014, the DOJ announced that it entered into a settlement agreement with America’s leading Internet grocer, Peapod LLC and Ahold U.S.A. Inc. The DOJ alleged that www.peapod.com was not accessible to people with visual or hearing impairments. Peapod agreed to ensure that its website and mobile applications conform to the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), and to follow many of the administrative remedies laid out in the H&R settlement.

The Question of Equivalent Alternatives

Unfortunately for retailers, it is currently unclear whether a company can meet its obligations under the ADA by offering users an alternate way to access the information and services made available on its website.

For years, retailers took comfort in the 2010 ANPRM’s suggestion that a website does not necessarily have to be accessible, as long as the company offers an equivalent alternative way to access the goods and services made available on the website. It explained:

[C]overed entities with inaccessible websites may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their website. In order for an entity to meet its legal obligation under the ADA, an entity’s alternative must provide an equal degree of access in terms of hours of operations and range of information, options, and services available. For example, a department store that has an inaccessible website that allows customers to access their credit accounts 24 hours a day, 7 days a week in order to review their statements and make payments would need to provide access to the same information and provide the same payment options in its accessible alternative.

On June 25, 2015 the DOJ seemed to shift position in cases against Harvard and MIT filed by the National Association of the Deaf. These cases alleged that the universities failed to caption online video content, and thus violated the ADA and Section 504 of the Rehabilitation Act. The universities argued both that the cases should be dismissed because neither statute applies to websites, and that the DOJ should wait for the web regulations to take effect. In its “statements of interest” in both cases, the DOJ explained that the 2010 ANPRM was issued to offer guidance to covered entities on how to meet their “pre-existing obligations” to make their websites accessible. This seems to suggest that companies are responsible for making their websites accessible, regardless of whether they can provide for an equal degree of access through other means.

In light of these statements of interest, retailers should no longer assume that they are not responsible for making their websites accessible.

Websites Not Associated with a Physical Location

Another area of uncertainty is whether a website is subject to the ADA if it does not have a nexus to any physical place of public accommodation.

In April 2015, the Ninth Circuit in Earll v. eBay Inc. became the first Circuit Court to address this issue, holding that a nexus is required. In simple terms, this means that web-only businesses are not places of public accommodation under Title III.

Although no other Circuit has reached this precise issue, the Third and Sixth Circuits have each held that Title III does not apply where there is not a sufficient connection between the discrimination the plaintiffs alleged and a physical place. In both cases, the courts found that a long-term disability plan by an employer and administered by an insurance company does not fall within the purview of Title III; because the plaintiffs in both cases received disability benefits through their employment, the courts found that they did not have a connection to their insurance company’s office and thus were not discriminated against in connection with a public accommodation.

The Eleventh Circuit has interpreted Title III somewhat more broadly, finding that it covers both tangible barriers (such as those that prevent a disabled person from entering a building) and intangible barriers to a physical place (such as eligibility requirements or discriminatory policies).

Conversely, the First and Seventh Circuits have found that Title III applies even in the absence of some connection to a physical place.[1] Similarly, the Second Circuit has expressed that Title III “is not only obligated by the statute to provide disabled persons with physical access,” but has not yet considered a case in which a defendant operated no physical space open to the public but nevertheless provided goods or services to the public.

Both the District of Massachusetts and District of Vermont have found that Title III covers entities providing exclusively web-based services to the public. In both cases, the courts explained that, “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.”

Conclusion

Until more formal or specific guidance becomes available, retailers should evaluate their websites under the WCAG 2.0 Guidelines, and make any necessary changes as soon as possible. Given the lack of clarity, companies should also consult with counsel with expertise in this area to explore what other changes they should consider to protect themselves.

[1] Carparts Distrib. Ctr., Inc. v. Auto. Wholesalers Assn. of New England, 37 F.3d 12, 19 (1st Cir. 1994); Doe

  1. Mutual Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co. and Am. Fed’n of Grain Millers, AFLCIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001).