In 2016, companies should consider examining the issue of website accessibility under Title III of the Americans with Disabilities Act (ADA). Litigation is increasing in this area due to continuing uncertainty surrounding the ADA’s application to some websites, a lack of ADA standards for websites, and an aggressive position taken by the U.S. Department of Justice (DOJ).
The ADA requires (with some exceptions) that “places of public accommodation” ensure equal access to the goods and services they offer. The ADA defines public accommodations as places like hotels, restaurants, movie theaters, and retail stores – all physical locations. 42 U.S.C. § 12181(7). After the adoption of the ADA, the DOJ promulgated regulations to implement the law. See, e.g., 28 C.F.R. Part 36 (2015). In addition, the United States Access Board published the ADA Accessibility Guidelines to provide detailed guidance for entities covered by the law. The ADA and its implementing regulations can be enforced through private lawsuits and separately by the DOJ. 42 U.S.C. § 12188. The DOJ can also intervene in private lawsuits. While private litigants may seek injunctive relief only, not money damages, a successful plaintiff can seek recovery of attorneys’ fees and costs. 42 U.S.C. § 12205.
The ADA was adopted before the Internet came into wide use, and its regulations have not yet changed to address Internet websites. The DOJ, however, takes the position that websites offering goods or services to consumers are places of public accommodation and must be accessible to the disabled by compliance with certain international standards on accessibility, regardless of whether the website is associated with a physical location. The courts, in the absence of specific regulations, have been left to decide if and how the ADA applies to accessibility of websites for the disabled – with differing results. Some courts have held that websites must have a nexus to a physical location in order to be subject to the ADA, while others have held that connection to a physical location is not necessary. Regardless, the lack of specific standards coupled with the DOJ’s position has resulted in increased litigation.
The DOJ’s position is that all public accommodations must make their websites accessible under current law, even in the absence of a nexus to a physical location and even in the absence of specific regulations. See Letter from Deval L. Patrick, Assistant Attorney General to Senator Tom Harkin (Sept. 9, 1996) (“Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.”). The DOJ takes the view that “[T]itle III reaches the Web sites of entities that provide goods or services that fall within the 12 categories of ‘public accommodations’ as defined by the statute and regulations.” Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460-01 (July 26, 2010).
Although the ADA gives the DOJ the power to adopt regulations and enforce the ADA, it has not yet adopted any regulations applying the ADA to websites. Instead, in 2010, the DOJ issued an advanced notice of rulemaking, 75 Fed. Reg. 43460-01, which, among other things, sought input on whether the DOJ should adopt “the WCAG 2.0’s ‘Level AA Success Criteria’ as its standard for Web site accessibility for entities covered by [T]itles II and III of the ADA.” Id. at 43465.
The Web Content Accessibility Guidelines (WCAG) are guidelines that have been developed cooperatively under the auspices of the World Wide Web Consortium by individuals and organizations around the world. These guidelines have been incorporated into the Department of Transportation’s rules governing airline carriers, but they are not broadly applied as a matter of law in the United States. In its Fall 2015 Statement of Regulatory Priorities, the DOJ said that it “decided to extend the time period for development of the proposed [T]itle III Web site accessibility rule and include it among its long-term rulemaking priorities. The Department expects to publish the [T]itle III Web site accessibility NPRM [Notice of Proposed Rulemaking] during fiscal year 2018.”
The DOJ has entered into settlements mandating that websites conform to the WCAG 2.0 at specific conformance levels (A and AA). The DOJ has also intervened in lawsuits or filed statements of interest. In one such case involving H&R Block, it was resolved through a consent decree that provided that the “website, tax filing utility and mobile apps will conform to the Level AA Success Criteria of the WCAG 2.0.” A settlement agreement with Carnival Corporation provided that “[t]he accessibility of Carnival Corp. websites and mobile applications will comply with WCAG 2.0 Level A and AA.” Additionally, part of a settlement agreement with EDX Inc. provided that the owner of mobile applications providing learning management and online courses comply with WCAG 2.0.
The U.S. Courts of Appeals for the Third, Sixth, Ninth and Eleventh Circuits have held that there must be a connection with goods and services and the physical location, thus limiting “places of public accommodation” under the ADA to actual physical spaces. Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997) (“a public accommodation is a physical place”); Ford v. Schering-Plough Corp., 145 F. 3d 601, 613 (3d Cir. 1998); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (considering a Title III ADA claim from an employee who received benefits issued by a third-party insurance company and holding that “some connection between the good or service complained of and an actual physical place is required”); Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1327-28 (11th Cir. 2004) (affirming the district court’s dismissal of an ADA claim, holding that a website itself was not a place of public accommodation).
Subsequently, several courts in these districts have concluded that Title III applies to websites only where there is a connection or “nexus” between a website and the physical space. In National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006), the plaintiff alleged that Target.com violated the ADA because the website did not provide equal access to blind and visually impaired customers, asserting that they could not access the Target website to purchase products, find Target stores, order a prescription refill online for pickup at a store, order photo prints for pickup at a store, or utilize other information or features available to sighted customers. Target moved to dismiss and argued, in part, that the ADA did not apply to its website. The court found that the ADA applied where there was a “nexus” between the use of a website and enjoyment of the goods and services offered in a retailer’s physical store. Id. at 956. The U.S. District Court for the Northern District of California also applied the “nexus” standard in dismissing an ADA claim against Facebook brought by a mentally disabled individual, because “Facebook operates only in cyberspace, and is thus not a ‘place of public accommodation.’” Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115-16 (N.D. Cal. 2011).
Other district courts in the Third, Sixth, Ninth and Eleventh Circuits have applied this standard to websites. See, e.g., Peoples v. Discover Fin. Servs., Inc., No. 08-2024, 2009 WL 3030217, at *2 (E.D. Pa. Sept. 22, 2009) (“[b]ecause there is no connection here between the services offered ... and a physical place of accommodation, plaintiff’s Title III claim must be dismissed”).
In 2015, the Ninth Circuit addressed website accessibility of Internet-only retailers in two unpublished decisions. In Cullen v. Netflix, Inc., 600 F. App’x 508 (9th Cir. 2015), the plaintiff alleged that Netflix provided insufficient accommodations to deaf subscribers. The Ninth Circuit found that because Netflix’s services are not connected to any “‘actual physical place,’ Netflix is not subject to the ADA.” Id. at 509. In Earll v. eBay, Inc., 599 F. App’x 695 (9th Cir. 2015), the Ninth Circuit found the same stating that “[b]ecause eBay’s services are not connected to any ‘actual, physical place,’ eBay is not subject to the ADA.” Id. at 696.
The First and Seventh Circuits have found that the ADA applies without a connection to a physical place, reasoning that the site of a sale is irrelevant, and what matters is whether the goods or services are offered to the public. Carparts Distribution. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F. 12, 19 (1st Cir. 1994); Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001). The U.S. District Court for the District of Massachusetts applied the Carparts Distribution Center reasoning to Netflix, “which held that ‘places of public accommodation’ are not limited to ‘actual physical structures.’” Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012).
In Nat’l Fed’n of the Blind v. Scribd Inc., No. 2:14-cv-162 (D. Vt. Mar. 19, 2015) (order denying motion to dismiss), a plaintiff alleged that an Internet website and mobile application were inaccessible to the blind. The district court judge denied the defendant’s motion to dismiss, which contended that the ADA did not apply to website operators whose goods or services are not made available at a physical location. The court held that the plaintiff sufficiently alleged a place of public accommodation and allowed the lawsuit to proceed. Notably, the court reviewed the DOJ’s position that the ADA applies to the Internet and web-based goods and service providers and stated that “[g]iven the DOJ’s body of experience, the Court will give some deference to its conclusion that the ADA applies to websites covered by one of the categories [identified] in the statute.” Id. at 22; see also 2015 WL 3454738 (D. Vt. May 29, 2015) (denying motion to certify the denial of the motion to dismiss for interlocutory review).
Given the lack of specific standards and the DOJ’s position, as well as various court decisions, circumstances are ripe for plaintiffs to file lawsuits alleging that websites are in violation of the ADA. Plaintiffs will typically seek an injunction and court order directing the defendant company to take all steps necessary to bring its website into full compliance with the ADA, often citing WCAG 2.0, as well as to pay the plaintiff’s attorneys’ fees and costs.
The litigation risk for your company depends on whether it has physical locations, where it is located, and the current accessibility of your company’s websites. Minimizing litigation risk and cost depends on assessing the accessibility of your website early and consulting with both specialized ADA technology experts and experienced counsel who know how to help achieve compliance, litigate these claims, and negotiate with the DOJ.
Sue J. Stott is an experienced litigation partner at Perkins Coie in San Francisco, representing employers and service recipients in employment, independent contractor, and general business disputes in addition to companies facing claims related to the Americans with Disabilities Act.
Amanda J. Beane is an experienced litigation partner at Perkins Coie in Seattle, representing clients in litigation involving class actions, consumer protection and privacy, contracts, and the Americans with Disabilities Act.
Kimberly Reindl is senior counsel at Perkins Coie in Washington, D.C., advising several of the world’s leading equipment manufacturers and Internet companies on digital accessibility matters, including compliance with the Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA), the Americans with Disabilities Act (ADA), Sections 504 and 508 of the Rehabilitation Act of 1973, as well as voluntary guidelines, such as the Web Content Accessibility Guidelines (WCAG).
Jill L. Ripke is counsel at Perkins Coie in Phoenix, representing clients in complex class action cases including employment and independent contractor class action matters.