July 26, 2022, marked the 32^nd anniversary of the Americans with Disabilities Act (ADA). The technological advances that have taken place over the past 32 years continue to raise questions regarding accessibility and compliance with ADA requirements. One such question for businesses is how to ensure that their websites comply with the ADA (and, increasingly, with relevant state laws). The number of ADA-based lawsuits arising from alleged website deficiencies continues to increase, so businesses should take steps to ensure that their websites are accessible to all members of the public, particularly those with auditory and visual disabilities.¹

Technical Details and Legal Precedents

The ADA applies to businesses that are open to the public under Title III, which covers public accommodations.² Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods and services of any place of public accommodation.³ While websites are not listed in the statute as a public accommodation, Department of Justice (DOJ) regulations indicate that websites are included within the meaning of the statutory definition, particularly for websites that are associated with businesses that also have brick-and-mortar business operations.⁴ The ADA provides a list of specific prohibitions, including imposing eligibility criteria that screen out individuals with disabilities,⁵ as well as failing to make reasonable modifications to policies when the modification is necessary to afford goods and services to individuals with disabilities, unless doing so would fundamentally alter the nature of the goods or services.⁶ A business must also take steps necessary to ensure that no individual with a disability is excluded or treated differently than other individuals because of the absence of auxiliary aids unless it can demonstrate that these steps would fundamentally alter the nature of the good or service or result in an undue burden.⁷ Auxiliary aids include any effective method of making visually-delivered materials available to individuals with visual impairments, like a screen-reader.⁸ Within the context of website-based deficiencies, a business is unlikely to be able to successfully argue undue hardship in making changes to be more accessible. Lastly, the ADA requires the removal of architectural and communication barriers that are structural in nature if the removal is readily achievable.⁹

Courts across the country have set varying standards for what level of website inaccessibility for the visually impaired constitutes a violation of the ADA. In the Third and Sixth Circuits, courts have found that only physical spaces are considered “places of public accommodation” under the ADA — therefore, websites are excluded.¹⁰ In the First Circuit, courts have held that a website can be considered a public accommodation even without a connection to a physical location.¹¹ The case law continues to develop and remain inconsistent across jurisdictions.

California and New York have had the highest numbers of website-based ADA cases filed. This is likely due, at least in part, to the plaintiff-friendly statutory framework of the California Unruh Act, Cal. Civ. Code section 51, which guarantees a minimum of $4,000 in statutory penalties, along with attorneys’ fees, to any successful plaintiff. The lawsuits generally allege ADA violations against a variety of businesses — including wineries,¹² retail stores,¹³ nail salons,¹⁴ restaurants,¹⁵ realtors,¹⁶ food companies¹⁷ and furniture stores.¹⁸

Current Guidelines

The DOJ issues regulations on how to interpret the language of the ADA.¹⁹ However, to date, the DOJ has not promulgated clear regulations on ADA-compliant website accessibility. To clarify ADA requirements, the DOJ released the “Guidance on Web Accessibility and the ADA” on March 18, 2022.²⁰ The DOJ states that the ADA’s requirements apply to all the goods and services offered by public accommodations, including those offered online.²¹ The guidance notes that ensuring web accessibility for people with disabilities is a priority for the DOJ, particularly as the world continues to become more reliant on websites and online services.²²

The DOJ provides examples of web accessibility barriers, including the following: poor color contrast, use of color alone to give information, lack of text alternatives (“alt text”) on images, inaccessible online forms and mouse-only navigation.²³ Strong color contrast between alt text and backgrounds is important to ensure that individuals who have low vision or are colorblind are able to read the content.²⁴ Alt text involves providing a description of all images and links on a website that can provide a description, usually through a screen reader, for someone who cannot view an image.²⁵ If the context of an image is important for the user to understand its meaning, it is also important to describe that context in the alt text.²⁶ Graphics, such as tables and graphs, should also be labeled and described with detail.²⁷ Online forms can be inaccessible if they are missing clear instructions, error indicators or labels that screen readers can convey to users, such as where a credit card number should be entered. One way to test the readability of a website is by downloading free software or using a smartphone screen-reader to test compatibility.²⁸

Although the DOJ does not yet have regulations setting out the detailed standards required of businesses, its longstanding interpretation of the general non-discrimination and effective communication provisions apply to web accessibility.²⁹ The DOJ points to existing technical standards, like the Web Content Accessibility Guidelines (WCAG) and Section 508 Standards³⁰ (used by the federal government for its own websites).³¹ Currently, businesses have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication.³² However, they must ensure that people with disabilities have access to the goods and services that they provide to the public, including those provided online.³³

Final Thoughts

In order to ensure accessibility for all, as well as to avoid ADA claims based on technical website violations, credentialing organizations should review their websites for compliance with the DOJ and latest WCAG guidelines, make updates as needed and conduct follow-up maintenance reviews as necessary to ensure continuing compliance.³⁴ Best practices will include continued improvements in ensuring website accessibility for all disabled individuals by following the steps set forth in this article, especially in states with significant amounts of Title III litigation.

References

1. Jason Taylor, 6 ADA Web Accessibility Trends Revealed in Our Mid-Year 2022 Report, UsableNet (June 30, 2022, 10:00:00 AM), https://blog.usablenet.com/6-ada-web-accessibility-trends-revealed-in-our-mid-year-report.
2. Guidance on Web Accessibility and the ADA, ADA.gov, https://beta.ada.gov/resources/web-guidance (March 18, 2022).
3. 42 U.S.C. § 12182(a).
4. Guidance on Web Accessibility and the ADA, ADA.gov, https://beta.ada.gov/resources/web-guidance (March 18, 2022).
5. 42 U.S.C. § 12182(b)(2)(A)(i).
6. 42 U.S.C. § 12182(b)(2)(A)(ii).
7. 42 U.S.C. § 12182(b)(2)(A)(iii).
8. 42 U.S.C. § 12103(1).
9. 42 U.S.C. § 12182(b)(2)(A)(iv).
10. Edward P. Abbot, ADA Circuit Split on Website Accessibility in Full Bloom as Eleventh Circuit Holds That Websites Are Not Places of Public Accommodation, Hawkins Parnell (April 26, 2021), https://www.hpylaw.com/publications/ada-circuit-split-on-website-accessibility-in-full-bloom-as-eleventh-circuit-holds-that-websites-are-not-places-of-public-accommodation/.
11. Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New Eng., Inc., 37 F.3d 12, 19 (1st Cir. 1994).
12. Gomez v. Ackerman Fam. Vineyards LLC, 3:21-CV-09184-WHO, 2022 WL 1693707 (N.D. Cal. May 26, 2022); Gomez v. Trinitas Cellars, LLC, 3:21-CV-09006-WHO, 2022 WL 2194658 (N.D. Cal. June 17, 2022)
13. Calcano v. Swarovski N.A. Ltd., 36 F.4th 68 (2d Cir. 2022).
14. Downing v. Laque Nail B., CV 21-5957 FMO (KSX), 2022 WL 1518252 (C.D. Cal. May 2, 2022) (finding that plaintiff’s allegations were insufficient to show that making its website compatible with screen-reading software would not result in an undue burden for the nail salon).
15. Downing v. SBE/Katsuya USA, LLC, 221CV06058ODWKKX, 2022 WL 1016665 (C.D. Cal. Apr. 5, 2022) (finding no ADA violation because the plaintiff did not sufficiently allege a nexus between defendant’s website and its physical locations and because she did not sufficiently allege that she was actually denied a public accommodation).
16. Gomez v. Gates Estates, Inc., C 21-7147 WHA, 2022 WL 458465 (N.D. Cal. Feb. 15, 2022) (dismissing plaintiff’s case because he had no intent to engage the services of the business, and therefore, has not suffered an injury under the ADA).
17. Romero v. 88 Acres Foods, Inc., 20-CV-9215 (KMW), 2022 WL 158686 (S.D.N.Y. Jan. 18, 2022) (denying Defendant’s motion to dismiss for failure to state a claim, holding that websites qualify as places of “public accommodation” and must provide equal services to visually impaired and sighted people).
18. Mason v. Aldea Design, Inc., 2:21-CV-07823-SB-PVC, 2022 WL 2189615 (C.D. Cal. Jan. 6, 2022) (finding that plaintiff sufficiently alleged a violation of Title III of the ADA because the lack of screen-reading software on defendant’s website prevented her from accessing the defendant’s physical store locations).
19. See 42 U.S.C. § 12186(b).
20. Guidance on Web Accessibility and the ADA, ADA.gov, https://beta.ada.gov/resources/web-guidance (March 18, 2022).
21. Id.
22. Id.
23. Id.
24. 10 Website Compliance Dos and Don’ts for the Visually Impaired, UsableNet (Sept. 16, 2022, 10:43:00 AM), https://blog.usablenet.com/10-website-compliance-dos-and-donts-for-the-visually-impaired.
25. 10 Website Compliance Dos and Don’ts for the Visually Impaired, UsableNet (Sept. 16, 2022, 10:43:00 AM), https://blog.usablenet.com/10-website-compliance-dos-and-donts-for-the-visually-impaired.
26. Id.
27. Id.
28. Id.
29. Guidance on Web Accessibility and the ADA, ADA.gov, https://beta.ada.gov/resources/web-guidance (March 18, 2022).
30. Section 508 of the Rehabilitation Act (29 U.S.C. § 794d), as amended by the Workforce Investment Act of 1998 (P.L. 105-220).
31. Guidance on Web Accessibility and the ADA, ADA.gov, https://beta.ada.gov/resources/web-guidance (March 18, 2022).
32. Id.
33. Id.
34. Guidance on Web Accessibility and the ADA, ADA.gov, https://beta.ada.gov/resources/web-guidance (March 18, 2022) (including strong color contrast, not using color alone to give information, providing “alt text” on images, ensuring accessibility of online forms, and providing more than mouse-only navigation).