There has been a dramatic increase in website accessibility cases in recent years where plaintiffs allege company websites violate the Americans with Disabilities Act (ADA) Title III, which prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….”
But does a website meet the qualifications of a public accommodation under the ADA, or does the act limit places of public accommodation to physical spaces? Currently, the courts are split on this issue, but as companies increasingly rely on websites to conduct business, they would be wise to be proactive and address accessibility issues.
Where the Courts Stand
The ADA defines a public accommodation as a private entity whose operations affect commerce, and that falls within one of 12 enumerated categories. The Courts of Appeals for the Third, Sixth, and Ninth Circuits hold that the statute is unambiguous; “places of public accommodations” are limited to physical locations. Discrimination only exists if the discriminatory conduct has a “nexus” to the goods and services of a physical location.
By contrast, the Courts of Appeals for the First and Seventh Circuits reach the conclusion that “places of public accommodation” need not be physical structures, and discrimination may occur when the goods or services of a “place of public accommodation” are enjoyed by customers who never visit a physical location.
The Eleventh Circuit has taken a middle position holding that the ADA bars discrimination outside of a physical place of public accommodation that nevertheless deprives an individual of the right to enjoy the goods or services offered to the public at the physical place of public accommodation.
As for the Second Circuit, though it has not addressed whether the ADA’s prohibition to discriminate in places of “public accommodation” extends to “places” on the internet or to the online services of real-world public accommodations, the court, in Pallozzi v. Allstate Life Insurance Co. indicated that it shared the views of the First and Seventh Circuits. The court rejected the insurer’s contention that the ADA applies only to “insurance offices,” i.e., the claim that Title III guarantees only “physical access to the facilities of insurance providers,” but does not “prohibit discrimination against the disabled in insurance underwriting.” The Second Circuit found that argument “unpersuasive,” explaining, “Title III’s mandate that the disabled be accorded ‘full and equal enjoyment of the goods, [and] services…of any place of public accommodation,’ suggests to us that the statute was meant to guarantee them more than mere physical access.”
Accordingly, the Pallozzi court found that Title III of the ADA regulates insurance underwriting practices regardless of where that underwriting takes place. Since Pallozzi, the district courts in the Second Circuit have extended Title III to online sites offering goods and services.
Recommendations for Website Accessibility
As businesses move away from traditional brick and mortar stores and increasingly rely on websites to transact business, they can expect more courts to hold that commercial websites qualify as “public accommodations” within the meaning of the ADA. Therefore, it is in the best interest of businesses to be proactive.
To this end, businesses should become familiar and comply with the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA, published by the World Wide Web Consortium’s (W3C) Web Accessibility Initiative (WAI). While the Department of Justice has not yet adopted the WCAG guidelines, they are generally accepted as the standard for providing full and equal access in accordance with federal law.
In addition, businesses should review their websites for the presence of common accessibility issues and consider the following potential remedies:
• Images without text equivalents. Web pages that contain images without text are inaccessible to those who are blind and to those who use assistive technologies, such as screen readers, when viewing web pages. To remedy this issue, businesses should ensure all images are accompanied by a caption and/or meaningful text that provides a description of the images.
• Documents Available in PDF Format Only. Documents posted to websites in PDF format (or other image-based formats) are generally not accessible to those who use assistive technologies, such as text enlargement programs, when visiting websites. To ensure maximum accessibility, any document made available on a website should also be posted in a text-based format such as HTML or Rich Text Format, as this allows the document to be enlarged as needed.
• Inability to Change Color and Font Size. When a website does not allow a user to manipulate the color and font settings in a manner that is readable to her, accessibility issues are created for those with low vision. Accordingly, businesses should strive to ensure their websites allow users to specify the text, background colors, and font sizes needed to adequately view the web page’s content.
• Videos and Other Multimedia without Audio Description and Captions. Video and other types of multimedia may create accessibility issues for those with hearing and vision disabilities. For example, those with hearing disabilities may be able to see video images, but may not be able to hear the audio that accompanies the video. Conversely, those with impaired vision may be able to hear the audio, but not view the video. Businesses should provide audio description of images for those with vision disabilities and provide text captions synchronized with the video for those with hearing disabilities.
• Lack of Keyboard Accessibility. When a website cannot be navigated through a keyboard or alternate keyboard, the website is generally not sufficiently accessible to those with impaired vision as well as those who rely on alternate keyboards and/or related devices to access websites. Businesses should ensure that their websites can be navigated via a keyboard or keyboard interface (so an alternate keyboard may be used).
Although remedying the above issues will aid significantly in eliminating key website accessibility issues, businesses should ultimately strive to comply with the comprehensive WCAG guidelines, Level AA.
Given companies’ reliance on their websites to both attract and conduct business, it makes good practical business sense to make those websites accessible to all. Moreover, through judicial decisions discussed previously and/or potential legislation, including, but not limited to state legislation, broader website accessibility will likely be mandated. Consequently, businesses should be proactive in addressing accessibility issues and should start reviewing and updating websites now.