The Americans with Disabilities Act (ADA) enacted in 1990, prohibits discrimination on the basis of disability. Specifically, Title III of the ADA prohibits discrimination on the basis of disability in a place of public accommodation, including movie theaters, schools, restaurants, and office buildings. All public places and privately-owned commercial facilities must comply with ADA standards. When people think of the ADA, they commonly think of wheelchair ramps and braille on signs.
Title III states that all “places of public accommodation” are required by law to remove any “access barriers” that would prevent a person with disabilities from accessing the business’ goods or services.
Today, there is contention in the courts as to whether that language includes a website that prevents access to a business’ goods or service. Further, even if it doesn’t mean that today, the Department of Justice (DOJ), which enforces the ADA, is looking to interpret the law to apply to commercial websites in the very near future. Specifically, in 2010, the DOJ issued a notice stating that it would amend the language of the ADA to ensure accessibility to websites for individuals with disabilities. The amendments have not been enacted, but the trend is still moving towards making websites accessible to disabled individuals.
As early as 2006, disabled individuals have brought claims under Title III for websites that are inaccessible to the disabled. In 2006, Target settled a class action lawsuit alleging Target.com did not accommodate to the blind. Other major companies hit with class actions for not maintaining websites accessible to the blind and visually impaired include Reebok and the NBA in 2015.
What do the courts think?
The key issue in court is whether website operators are operating “a place of public accommodation.” When the law was enacted in 1990, it included a list of 12 different types of places of public accommodation, including a catch-all for “other sales or rental establishment.”
The courts have taken three positions on this issue. First, some courts claim that the ADA applies to all commercial sites because the law was meant to protect disabled individuals from having a more difficult time doing business. Other courts take the position that if the website has a “nexus” or connection to a physical location, then the ADA applies. Facebook has escaped liability on these grounds since their website does not have a connection to any public place. The third position is that the ADA does not apply to websites and only applies to physical locations. In Florida, the courts have taken the second position.
In Florida, the Federal Southern District has held that a place of public accommodation’s website is required to be ADA compliant if the website is a “nexus” to the place of public accommodation. Gil v. Winn Dixie Stores, Inc. The plaintiff, in that case, was a blind individual who wanted to locate Winn Dixie stores online and refill his prescription online, so that he would not need to orally announce his medications to protect his privacy under HIPPA. The court held that the website needed to be ADA compliant because it had a nexus to a place of public accommodation and impeded a disabled person’s ability to enjoy Winn Dixie’s services in-store. The plaintiff could not enjoy the service of walking to the pharmacy window and simply picking up his prescription.
Under the ADA, a prevailing plaintiff is not entitled to damages but may recover reasonable attorneys’ fees. The relief provided under the ADA is an injunction ordering the company to bring their website within compliance. Gil was awarded attorneys’ fees in the Winn Dixie case.
The Federal Southern District of Florida has also held that a website is not subject to ADA compliance if the website does not impede a disabled person’s access to the physical locations of the business. Haynes v. Pollo Ops, Inc. In that case a blind plaintiff alleged that he was not able to access the defendant’s website and thus was denied full and equal access to the company’s website. The court dismissed the case and reasoned that the website did not impede plaintiff’s access to the physical stores, because the website merely contained information about the company.
All courts in Florida have held that websites wholly unconnected to a physical location do not need to be ADA compliant.
Nowadays, the internet is used so widely that ADA compliance may soon apply to all websites and mobile apps.
How to comply:
Disabled individuals may have many different ailments that prevent them from accessing a website. Individuals with vision, hearing, or physical disabilities makeup approximately 20 percent of the population and will encounter significant challenges accessing websites. As an example, pictures need alternative text for the blind to understand what is being illustrated and videos need to have captions or transcripts for the deaf.
The Web Content Accessibility Guidelines WCAG 2.1 lays out 61 guidelines to follow, as the standard for ADA website compliance. WCAG 2.1 lays out three levels of compliance, A, AA, and AAA. The higher the level, the better your website meets the requirements and allows greater accessibility to users. Currently, all federal institutions’ websites must meet AA compliance on all items. WCAG 2.1 lists all 61 guidelines and says whether each one is required for A, AA, or AAA. AA requires compliance with all A level and AA level guidelines. Accordingly, AAA requires compliance with all A level, AA level, and AAA level guidelines. Since the law is still murky, web developers recommend meeting AA compliance like federal institutions.
More than likely your website already meets most of the 61 requirements or will only take a developer a few minutes to bring to par. However. there are items that may be more difficult to fix depending on the complexity of your website’s layout and design. For example, your site must be able to handle text scaling up to 200% without causing horizontal scrolling or content-breaking. Also, your website needs to be fully navigable via keyboard only, including skip navigation buttons and manually setting a tabindex everywhere. These are just a few examples, but there is much more that goes into making a website accessible to disabled individuals.
There is software that tests many of these issues, but for the best result, you should have a web developer go through all steps in the level of compliance necessary for your website.
In conclusion, the ADA says that all “places of public accommodation” are required by law to remove any “access barriers” that would prevent a person with disabilities from accessing the business’ goods or services. Thus, If the website creates access to the business’ goods or services in the public place, then there should be no barriers from accessing those services online. Again, if the website has no connection to the goods or services offered in store then the website does not need to be ADA compliant.
If you are wondering whether your website needs to be ADA compliant or interested in suing a company that is not in compliance, please do not hesitate to contact one of our knowledgeable attorneys at EPGD Business Law, located in beautiful Coral Gables and historic Washington, D.C. Call us at (786) 837-6787 or email us to schedule a consultation.
*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*
With the SBA’s release of the simplified PPP Loan Forgiveness Application, business owners are trying…
As of October 13, 2020, The Small Business Administration (SBA) recently announced a one-page loan…