Website Accessibility and the Americans With Disabilities Act

Most employers know the Americans with Disabilities Act (ADA) as the law that prohibits discrimination on the basis of disability and requires reasonable accommodation of employee disabilities. However, this ban is only one segment of the ADA, which is divided into three major segments. One of the other major sections aims to ensure that ‘places of public accommodation’ are also accessible to people with disabilities. As we reported earlier, a recent trend in this area focuses on websites.

As we explore this issue, we will dig deeper into the details surrounding website accessibility. Are the websites public places of accommodation? If so, what should companies consider? What changes to websites? The courts do not all agree on the answers to these questions. So, employers, beware – it might be time to take a look at your websites and make sure they’re accessible too, just like your workplaces.

ADA Background

The ADA is divided into three main parts called “headings”. Title I of the ADA prohibits employers from discriminating against employees on the basis of disability and requires employers to provide reasonable accommodations to certain employees in certain circumstances. This is the title with which employers are generally most familiar. ADA Title II covers state and local governments, and ADA Title III covers “places of public accommodation”. Under Title III, public accommodation must also be accessible to people with disabilities. The overlap between Title I (employment) and Title III (places of public accommodation) is extensive, largely because the physical locations of many employers are considered places of public accommodation.

The ADA does not define a “place of public accommodation,” but it is generally a private business or organization that provides goods, services, facilities, privileges, or accommodations to the public. The ADA lists a number of examples of public accommodations, ranging from restaurants, bars, and bakeries to health care providers, schools, and social service centers. The examples clearly show that a company’s physical locations are almost always considered public accommodations. As the Internet has grown and become an integral part of most business operations, there has been a lively debate about whether the activity of a business website is a public accommodation. If so, it must also be accessible to people with disabilities.

Website Accessibility Combinations

Courts have seen a substantial increase in the number of website accessibility lawsuits. Typically, these lawsuits claim that a person living with a disability (often a visual impairment) was unable to use a company’s website to purchase certain goods or learn about certain products, services, or other information. Thus, the argument is that they have been denied equal access to goods and services from a company, i.e. a public accommodation.

These lawsuits can usually be filed in any federal court because the ADA is federal law. However, many of these lawsuits are filed in states that have similar laws regarding public accommodations. This way, the plaintiff can allege that the company’s website not only violates the ADA, but also state law. For example, a number of these lawsuits have been filed in the Southern District of New York, likely because New York State and New York City have enacted laws that require equal access to workplaces. public accommodation.

As we discussed in a previous article, not all courts agree on whether a website should be considered a public hosting location. For example, the Eleventh Circuit Court of Appeals recently ruled that websites are not places of public accommodation. The court noted that the ADA “describes twelve types of places that are public accommodations. All of these types of places listed are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, consistent with the plain language of ADA Title III, public accommodations are limited to actual physical locations.In contrast, some courts, including the First Circuit Court of Appeals, have held to the contrary. Specifically, this court held that because “travel services” was included in the Title III list of examples and many travel services do not require customers to enter a physical office to receive services, Congress had “clearly contemplated” that the ADA would apply to places without a physical location.Yet other circuit courts have not addressed the issue, and the underlying district courts are split. case of the Court of Appeal of Second Circuit and District Courts of New York.

Common tendencies and defenses

While each website accessibility lawsuit comes with its own unique set of facts and circumstances, there are common patterns within them. As noted above, complainants typically claim that they were unable to use a company’s website and were thereby denied equal access to goods and services from a public accommodation. . Specifically, they tend to allege that the website was not compatible with the plaintiff’s “screen reader”, the software typically used to navigate the website, and that the screen reader was not able to “read” the website due to inadequacy of the website. himself.

A common request from complainants is that the website conform to the Web Content Accessibility Guidelines (WCAG), of which there are a few versions. The most recent version is WCAG 2.1. However, companies are not obligatory Comply with WCAG under the ADA. In fact, the Department of Justice has not issued any specific standards that companies are required to meet.

There are a number of things you and your legal team can do to protect yourself from and respond to these types of lawsuits. The most obvious is to make your website unquestionably accessible and become WCAG 2.1 compliant. You can hire an auditing firm that specializes in website accessibility to determine which areas of your website are not compliant and how you can fix them. This process can take time, so it is prudent to start this process quickly.

In terms of legal responses to these types of lawsuits, you’ll (as always) want to consult with your attorney. There are some common defenses to these lawsuits that may apply to you. First, maybe you can discuss the mootness. A claim is moot when the problem alleged by the claimant no longer exists. This happens in website accessibility lawsuits if you are able to completely remedy the points of inaccessibility claimed by the plaintiff. Again, there are website auditing firms that can help you identify issues and fix them. Second, you may be able to argue that the claimant has not constitutional upright. To sue in federal court, a plaintiff must allege “concrete and specific harm.” It is not enough to claim that a website is inaccessible. Courts have held that a plaintiff must identify the product or service they were unable to access and how they caused harm. Third, depending on what the courts in your jurisdiction have decided whether a website is a public place of accommodation, you may be able to argue that the claimant has not statutory upright.

Take away food

Since we last wrote about this issue, it has become clear that website accessibility lawsuits are not going away. As such, it might be time to take a look at your website and consider the pros and cons of complying with WCAG guidelines. It may also be time to consult your attorneys to see what the law is in your jurisdiction on this matter. We will keep you informed of any major developments.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 180

About Jean R. Manzer

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