While commercial businesses are generally aware of their responsibilities under the Americans with Disability Act (the “ADA” or the “Act”) with respect to the maintenance of their physical office spaces and the general policies of company, some companies have received demand letters alleging ADA violations based on an allegedly non-compliant website. Financial institutions in particular, as well as other businesses that maintain significant operations through online customer portals, have been at the center of these efforts.
On March 18, 2022, the United States Department of Justice (“DOJ” or “Department”) released new guidelines on website accessibility under the ADA. Given the DOJ’s stated position that “the requirements of the ADA apply to all goods, services, privileges, or activities offered by public accommodations, including those offered on the Web”,1 businesses should revise their websites to comply with the Ministry’s new guidelines.
ADA Background The law broadly protects the rights of persons with disabilities to employment, access to state and local government services, public accommodations, transportation, and other essential activities. Title II of the ADA prohibits discrimination on the basis of disability in access to state and local government services, programs, and activities. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of public accommodations (private entities whose operations affect commerce and that fall into one of the identified covered categories) and requires that newly constructed or modified public accommodations, as well as commercial facilities, to comply with ADA standards for accessible design. The DOJ is responsible for promulgating regulations under the ADA, except for certain provisions dealing specifically with transportation.2
DOJ guidelines on website accessibility have been in the works for many years. In 2010, the Department released its Advance Notice of Proposed Web Accessibility Rule entitled “Nondiscrimination on the Basis of Disability: Accessibility of Information and Web Services of State and Local Government Entities and Public Housing” (the “ANPRM 2010”). See 75 FR 43460 (July 26, 2010). The 2010 ANPRM announced that the Department is considering revising the regulations implementing ADA Titles II and III to establish specific requirements for state and local governments and public accommodations to make their websites accessible to people with disabilities, and further requested information on what, if any, standards it should adopt for web accessibility. The Ministry also requested comments on the projected costs of making websites accessible and on the alternatives available to mandate accessibility of websites. In 2015, after reviewing comments filed in response to the 2010 ANPRM, the DOJ announced that it intended to pursue the development of separate rules regarding web accessibility under the title II and Title III,3 and that any Title III proposals would be delayed accordingly.
What is the standard for a Title III violation under the ADA? The law provides that “[n]o the individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, benefits or accommodations of any public accommodation by anyone who owns, rents ( or rents to), or operates a public accommodation.”4 To this end, any applicant for Title III must justify:
1. He is disabled as defined by the ADA. 2. The Respondent is a private entity that owns, leases or operates a public accommodation. 3. The Claimant was denied access to this public accommodation by the Respondent on the basis of his disability, i.e. the Respondent failed to make “reasonable modifications” to the policies, practices or procedures or provided auxiliary aids as needed.
While the case law is well established as to what constitutes a disability under the Act, the question of what constitutes “public accommodation” has been the subject of differing interpretations by the courts that have been seized of this question.
Can a “public accommodation” be anything other than a physical place? many courts5 which decided this issue before the DOJ issued its website accessibility guidelines had ruled that a public accommodation must include a physical location for a Title III claim to be pursued. Other courts6 had investigated whether there was a “link” between the website in question and a physical place of public accommodation. However, many of these cases were decided before the explosion of e-commerce – particularly the boom in e-commerce in a post-COVID-19 landscape. And the validity of those earlier court rulings is in question given new DOJ guidance on the matter.
The new DOJ guidelines provide “[e]examples of businesses open to the public”, including:
- Retail stores and other sales or retail establishments;
- Banks;
- Hotels, inns and motels;
- Hospitals and medical practices;
- catering establishments; and
- Auditoriums, theaters and sports arenas.seven
Although the DOJ examples focus on places that typically have a physical location in addition to a website, it does not appear that the department will necessarily insist on a physical location for a website to be considered subject to the title. III of the ADA – as some courts have done. As the DOJ notes, “[i]he last few years have seen a multitude of services move online and people rely on websites like never before for all aspects of daily life.8 Thus, “the Ministry has . . . has taken the position that ADA requirements apply to all goods, services, privileges or activities offered by public accommodations, including those offered on the web.9 This broader approach would be consistent with the DOJ filing in National Association of the Deaf c. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012), in which the Department filed a Statement of Interest stating that the websites fall under Title III protection.
Even before the DOJ’s recent guidelines on website accessibility, the Seventh Circuit Court of Appeals – which encompasses the Indiana federal courts – refused to interpret the word “public hosting” literally, as “meaning only a physical site, such as a store or hotel”.[.]”ten In the opinion of the Seventh Circuit, “[a]An insurer can no more refuse to sell a policy to a disabled person on the Internet than a furniture store can refuse to sell furniture to a disabled person who walks into the store. . . . The site of the sale is unrelated to Congress’ goal of granting people with disabilities equal access to sellers of goods and services. What matters is that the good or service is offered to the public. Identifier. It would appear that the Seventh Circuit’s approach to website accessibility under ADA Title III was ahead of its time and would be consistent with new DOJ guidelines on the subject.
What are some examples of barriers to website accessibility? In its new guidelines, the DOJ offers several examples of website accessibility barriers that are problematic under the ADA. Some of these examples include:
- Poor color contrast in textwhich can make reading difficult for people who are visually impaired or color blind (e.g. light gray text on a light background).
- Use of color alone to convey informationthat people with color blindness cannot read or verify (for example, using only red text to indicate required fields on a form).
- Lack of text alternatives (“alt text”) on imagesso that blind people cannot understand the content and purpose of images, illustrations and graphics.
- No subtitles on videosthat people who are hard of hearing may not understand.
- Online forms inaccessiblethat people with disabilities may not be able to understand if they don’t convey clear instructions or error indicators telling the user that a form field is missing or incorrect.11
How do businesses ensure their websites are accessible under the ADA? Despite its new guidelines, the DOJ has not enacted any regulations establishing detailed standards for website accessibility as it has for other aspects of accessibility under Title III of the ADA. This gives businesses flexibility in how they will ensure that the programs, services and goods they offer online are accessible to people with disabilities. The Ministry has identified a number of existing technical standards adopted by other organizations that can help ensure the accessibility of website functionality. These standards include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards. WCAG is a set of highly technical guidelines published by the World Wide Web Consortium’s Web Accessibility Initiative. The Section 508 standards are a set of highly technical standards published by the US Access Board regarding access to information and communications technology under Section 508 of the Rehabilitation Act of 1973. that companies have some flexibility in how they comply with the general prohibition of When presenting their websites, the DOJ has made it clear that these companies “must ensure that the programs, services and goods they provide to the public – including those provided online – are accessible to people with disabilities”.12 Thus, companies would be well advised to review their websites and take all necessary precautions to bring their websites into compliance with the new directives of the Ministry.
Unfortunately, there are many areas that the new DOJ guidelines do not address, leaving open questions that can make it difficult for businesses to navigate these website accessibility compliance issues. For example, WCAG has adopted several versions of its technical compliance standards. The DOJ does not specify which standards will make a website “compliant” with ADA Title III. Additionally, Title III of the ADA allows for a departure from a requirement that would result in an “undue burden,” that is, significant difficulty or expense if performed. Absent guidance from the DOJ, what constitutes “undue burden” in the context of website accessibility will likely be taken to court. Likewise, as noted above, a company may make “reasonable modifications” to policies, practices, or procedures or provide ancillary aids while complying with Title III of the ADA. The new DOJ guidelines don’t say, for example, whether it’s permissible to provide an alternate toll-free number instead of an accessible website. Again, what constitutes “reasonable modifications” in the context of website accessibility will likely also be challenged in court.
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