The ADA and Website Accessibility

Today, most organizations are familiar with the general requirements of the Americans with Disabilities Act. Enacted in 1990, the ADA prohibits discrimination based on disability and imposes attendant accessibility requirements on employers, public entities, and public accommodations. But one aspect of ADA’s protections has, until recently, gone largely unnoticed and un-litigated: organizations may bear responsibility for ensuring their websites are ADA-compliant. Minnesota’s federal courts received their first website accessibility ADA claims this fall, signaling that Minnesota has not escaped the national trend of an increase in this type of action.

ADA website litigation first made headlines in National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006), which held that a plaintiff (or group of plaintiffs) may state a claim for ADA discrimination based on an organization’s website design if “the inaccessibility of [the organization’s website] impedes the full and equal enjoyment of goods and services offered in [the organization’s] stores”. For example, a blind person may state a claim against an organization whose website’s incompatibility with screen-reader technology prevents her from locating and visiting the organization’s physical store. See, e.g., Brintley v. Aeroquip Credit Union, 321 F. Supp. 3d 785 (E.D. Mich. 2018).

The recent trend of ADA website litigation, now making its way into Minnesota courts, invites self-examination: is your organization’s website ADA compliant? If not, what potential exposure is in play, and what steps can be taken to prospectively remedy a non-compliant website?

Applicability
Title III of the ADA, under which actions based on website accessibility have been brought, governs “public accommodations”, spanning twelve categories of commerce affecting entities, including (but not limited to) hotels, restaurants, theaters, grocery and hardware stores, banks, hospitals, places of education, and places of exercise or recreation. Organizations may risk non-compliance under Title III if their websites in some way reduce the overall accessibility of the “public accommodation” they operate.

Federal courts differ on whether the ADA may apply to a website “independent of any connection between the website and a physical place” or whether a website “must have a sufficient nexus to a physical place” to violate ADA protections. Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1318 – 1319 (S.D. Fla. 2017). Even entities providing an exclusively online service, such as Netflix, have been subject to ADA litigation in some jurisdictions. See, e.g., Nat’l Assoc. of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D. Mass 2012). Minnesota’s federal courts have not yet addressed this issue, but retailers and service providers with a website as well as physical stores may want to consider the interplay between the two, including whether their website’s design enhances overall accessibility

Accessibility
Even organizations that know the ADA applies to them may not know what to look for in ensuring a website is as equally-accessible as possible. Unfortunately, the path to compliance is not a simple checklist. The Department of Justice has not published specific guidelines for organizations to look to in ensuring their websites are ADA accessible, but that is no excuse for non-compliance: “lack of specific regulations cannot eliminate a statutory obligation”. Fortyune v. City of Lomita, 766 F. 2d 1098, 1102 (9th Cir. 2014). Thus, affected organizations must police themselves for compliance or risk being policed by private plaintiffs.

Accessibility lawsuits often make reference to the Web Content Accessibility Guidelines, published by the Web Accessibility Initiative, which set out four guiding principles in website design: websites should be Perceivable, Operable, Understandable, and Robust. The WCAG breaks down these categories into steps organizations can consider in determining whether their websites are as accessible as possible. While the WCAG are not promulgated by a federal agency, and courts have repeatedly refused to impose the WCAG as a definite standard by which liability is adjudicated, the WCAG may be a helpful guide to flag areas in which an organization can improve its website’s accessibility.

Risk
The ADA entitles a prevailing plaintiff to injunctive relief requiring the defendant to remedy violations. 42 U.S.C. § 12188. Although the statute does not permit a money judgment against defendant organizations, defendants may be required to pay the prevailing plaintiff’s reasonable attorneys’ fees. 42 U.S.C. § 12205. Thus, those defending ADA litigation can find themselves in protracted and expensive litigation with the possibility double attorney fees and court-mandated remediation of accessibility issues.

Of course, every situation is different, and whether the ADA applies is a case-by-case determination. Consultation with an attorney familiar with both the ADA and your organization is the best way to assess and manage potential exposure.

For more information about this update, contact author Ben Mulligan at bmulligan@larsonking.com.

Larson • King’s labor and employment law attorneys are available to answer any questions you may have about these recent developments or any other employment law-related questions.