By: Marty Heller
Have you ever had a hard time finding something on a website? The writing was too small or the navigation between pages was difficult? According to many blind or disabled Plaintiffs, that website might be illegal.
Generally, Title III of the Americans with Disabilities Act requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These rules apply to any Company that permits entry by the public. However, the rules may apply to the internet domain as well.
The Department of Justice is expected to release “accessibility” guidelines for webpages. These regulations should provide details of what is (and what is not) compliant under the Americans with Disabilities Act, and perhaps some further guidance on exactly who is covered by the guidelines.
Even before the regulations are released (which may not be until 2018), both the DOJ and private plaintiffs have been busy filing lawsuits claiming that individuals with vision related disabilities have been denied access to websites. Claims already have been brought against several national retailers, including Patagonia, Ace Hardware, Aeropostale, Bed Bath and Beyond, and many others. According to BNA, 45 of these lawsuits were filed in 2015, and that number is expected to increase substantially in 2016.
The case law addressing these issues is mixed. Case law from the Seventh Circuit has applied the ADA to websites, and the First, Second, and Eleventh Circuits have applied the ADA beyond physical structures, providing ground for plaintiffs to argue that the ADA can extend to a virtual space. Meanwhile, the Third, Fifth and Ninth Circuits previously have applied the ADA provisions to physical locations only.
This raises the question of whether the ADA’s accessibility requirements can apply to an internet only business. The Ninth Circuit has ruled that Ebay is not a place of public accommodation because they do not have a physical store, and therefore, they are not subject to the accessibility requirements of Title III. Meanwhile, federal district courts in other circuits, such as Vermont, have found that Title III of the ADA can apply to web-only businesses.
Whenever they are released, the DOJ’s regulations are expected to focus on the size and type of content on a website, and the complexity of navigating the content. There are many options to improve accessibility, but some include removing time limits if a user does not respond quickly enough, providing audio versions of text (through links or otherwise) and providing keyboard control for website functions (i.e., disabling mouse only functions).
Although there is no “one-size fits all” approach that ensures compliance, we recommend meeting with a website designer to discuss whether your website can be updated to provide accessible options at a reasonable cost. One key area to focus on is alt-text features that can make the website more accessible for individuals using screen-reader technology. In addition, it is possible that a company may be compliant by providing a traditional webpage and an alternative “accessible” webpage, similar to what we already see with “mobile-friendly” versions of webpages.