Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kendall Hoechst
Title III of the Americans with Disabilities Act (ADA) requires most businesses that offer goods or services to the public to make those goods and services equally available to disabled consumers. Plaintiffs’ lawyers, lured by the availability of attorneys’ fees under the statute, have begun sending demand letters and initiating ADA lawsuits in droves, claiming a variety of businesses’ websites are insufficiently accessible and are therefore discriminatory. The courts are split on how far Title III extends, resulting in a confusing legal landscape of conflicting guidance.
The U.S. Department of Justice (DOJ) has maintained for years that Title III applies to websites and has promised regulations to provide standards for evaluating website accessibility under Title III. However, the Trump administration recently put those long-overdue regulations on hold—indefinitely. Now, getting answers on this confusing issue will be more difficult than ever, but there are steps you can take to reduce your potential risk.
Title III of the ADA
Title III of the ADA requires all places of “public accommodation” (which includes most businesses that provide goods or services to the public) to ensure that consumers with disabilities are able to participate in the “full and equal enjoyment” of the goods or services they provide. Places of public accommodation may be required to make reasonable modifications to their practices or procedures, provide auxiliary aids and services, and remove architectural and communication barriers in their existing facilities.
The ADA was the most sweeping civil rights legislation passed by Congress since Title VII of the Civil Rights Act of 1964, but the Internet didn’t exist when it was drafted. Lawmakers had no conception of how the World Wide Web would change global commerce or affect our daily lives. Now that the Internet’s central role in modern life is unassailable, determining how Title III’s general prohibition on discrimination translates in the digital age has been a challenge for employers and for the courts. What a business should be required to do to ensure its website doesn’t discriminate against visitors with disabilities is the subject of much debate.
Title III provides for a private right of action for injunctive relief and an award of attorneys’ fees and costs. However, no monetary damages are available. The incentive of attorneys’ fees has led to a recent glut of demand letters by plaintiffs’ lawyers and a corresponding increase in ADA lawsuits filed in the federal courts. The same small groups of lawyers have sent hundreds, if not thousands, of demand letters to businesses all over the country, and they show no signs of slowing down.
Split over applicability to nonphysical access
The federal circuit courts of appeal are split on whether Title III applies only to discrimination occurring at a physical place. Courts on the narrow end, including the 3rd, 6th, and 9th Circuits, have concluded that public accommodations must be physical spaces or the goods and services provided must have a sufficient nexus to a physical place in order to be covered by Title III. A brick-and-mortar store that has an online shopping function on its website might be a public accommodation under this analysis, but an online-only retailer would not.
Courts on the broad end, including the 1st, 2nd, and 7th Circuits, have read Title III to encompass more than physical access to particular types of businesses. (The 2nd Circuit’s rulings apply to all Vermont employers.) These courts have concluded that discrimination may occur when goods or services of a public accommodation are enjoyed by customers who never visit a physical location.
Federal district courts applying and interpreting Title III in cases where the business’s website has no connection to a physical place open to the public have reached results on both ends of the spectrum and in between. The best indication of how a Vermont court would apply Title III is a 2015 case from the U.S. District Court for the District of Vermont that suggests the ADA will be interpreted broadly here. In National Federation of the Blind v. Scribd Inc., the court held that a digital library’s website and mobile applications were public accommodations under Title III even though the website operator had no goods or services available at a physical location open to the public. That suggests that even businesses that don’t have any physical offices or facilities open to the public may nevertheless be required to make their websites accessible.
So far, most of the cases that have been brought before the courts have settled. No court has provided a clear indication of what would be required to demonstrate that a website is appropriately accessible or that modifications are not necessary.
DOJ’s interpretation of Title III
As early as 1996, the DOJ took the position that Title III applies to websites and Web-based goods and service providers. In 2010, the DOJ maintained that position in an Advanced Notice of Proposed Rulemaking in which it considered revising the regulations implementing Title III to establish requirements for making the goods and services offered by public accommodations accessible to individuals with disabilities. The DOJ sought comments from the public on issues such as how much time businesses should have to comply and the standard that should be adopted to define an accessible website.
Observers have speculated that the regulations might require websites to conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA. Those voluntary guidelines, issued by the World Wide Web Consortium (W3C), have been cited with approval by the DOJ in public settlement agreements of Title III lawsuits. The WCAG ensure that websites have features that people with disabilities need for accessibility, such as compatibility with screen readers for users who are blind or have visual impairments and captions for audio content for users who are deaf or hard of hearing. The WCAG have been adopted as the standard for federal agency websites and are considered the gold standard by private- sector experts.
While the DOJ has insisted that websites need to be accessible, it hasn’t provided any guidance in the form of regulations after 2010 to enable businesses to determine whether their websites meet the standard. The DOJ has nevertheless pressured businesses to make their websites more accessible.
Without clear standards, confusion has reigned, and it’s now likely to continue indefinitely. Federal agencies periodically provide notice in the Unified Regulatory Agenda about the regulations that are under development. The Trump administration’s first agenda, published on July 20, 2017, lists the website accessibility regulations on its “inactive” list. This appears to be part of the administration’s larger effort to reduce the number of regulations that are in development and signals that the website accessibility regulations have been shelved for now.
What does this mean for employers?
Despite the lack of regulatory assistance, the leading Vermont case on the issue suggests that Vermont courts will apply Title III to employers’ websites. Assuming there’s a duty to make websites accessible, Title III doesn’t provide for monetary damages. However, given the lack of clear standards, it could be expensive to make a website compliant, and a lawsuit might result in an award of attorneys’ fees to a successful plaintiff.
Some cases suggest that an effective alternative to website accessibility could be acceptable. For example, if it’s possible to staff an alternative means of access, such as a 24-hour toll-free phone number listed on the website, that may be enough to accommodate disabled visitors.
You may wish to consider proactively ensuring your website is accessible. For example, you could hire an expert familiar with the technical requirements of WCAG 2.0 AA to scan your website and provide recommendations. You may also want to keep accessibility issues in mind the next time your website is redesigned.
Kendall Hoechst can be reached at email@example.com or 802-859-7042.