Web Sites Targeted For Disabilities Law Compliance

As Internet commerce continues to grow, retailers are increasingly facing allegations that their websites are inaccessible to individuals with disabilities, including those with hearing and visual impairments. The legal landscape in this area remains unsettled, and retailers awaiting formal guidance from the Department of Justice have been frustrated by lengthy delays in issuing a promised rule regarding the legal requirements for website accessibility. Despite this uncertainty, there are proactive steps retailers can take to improve their websites’ accessibility.

Title III of the Americans with Disabilities Act (the “ADA”) prohibits discrimination on the basis of disability in the services and benefits of “places of public accommodation,” which include restaurants, hotels, theaters, retail stores, and shopping centers. The law requires that places of public accommodation be designed, constructed, or altered to ensure equal access for individuals with disabilities, and further requires that auxiliary aids and services be provided to ensure effective communication to individuals with disabilities, unless doing so would fundamentally alter the nature of the good or service, or would impose an undue burden.

While the requirement that physical places of public accommodation be made accessible to individuals with disabilities, and that effective communication be provided to members of the public who visit stores and other places of public accommodation, the law itself is silent regarding the Internet, which was in its infancy at the time the ADA was adopted. Appeals courts in different parts of the country have come to different conclusions regarding whether a website qualifies as a “place of public accommodation” at all, with some courts finding that a website is subject to Title III of the ADA so long as the services offered online are the types of services offered by one of the enumerated “places of public accommodation” listed in the ADA, and others concluding that Title III applies to websites only if the websites have a sufficient connection or nexus to a physical place of public accommodation.

The Department of Justice (the “DOJ”), which enforces the ADA, has recognized the need for additional guidance regarding website accessibility, and announced in 2010 its intention to publish formal rules on the topic . In its 2010 Advanced Notice of Proposed Rulemaking (Click here to read the proposed regulation)), the DOJ recognized the need for guidance, which was great and growing. Despite having begun the rulemaking process, however, the DOJ’s rule has been stalled for years. While many in the industry had been hopeful that a proposed rule would finally be published in the Spring of 2016, the DOJ delayed that date (Click here to read the DOJ update) yet again, moving the Title III regulation to its “long term action” list, with no action expected until fiscal year 2018.

Despite its glacially slow approach to developing regulations, the DOJ has stepped up its enforcement actions in this area, and has reached several settlements in which defendants have agreed to make changes in their websites to improve their accessibility. Although there is no legally binding technical standard for web accessibility, the World Wide Web Consortium (W3C) has developed a set of voluntary accessibility guidelines, (Click here to read the guidelines) which have been the basis for settlements with both the DOJ and private plaintiffs.

Whether or not compliance with these guidelines is a requirement for compliance with the ADA (the DOJ itself, in the 2010 ANPRM, indicated that it may be possible to provide an accessible alternative to a website), there is a growing consensus that a website in compliance with the WCAG 2.0 AA standard is sufficiently accessible to satisfy the ADA.

Retailers are in a difficult spot. Developing and changing an e-commerce website is a process that requires planning and takes time. As the world moves online, however, this is an issue that is not going away. Retailers are well advised to review their web pages in light of potential accessibility issues, and to approach web development with accessibility in mind, both to reduce the risk of potential litigation, and to help reach additional customers.

By Nathaniel Bessey