Increasingly, companies face threat of legal action based on the claim that their websites and/or mobile applications are inaccessible to disabled users. Title III of the Americans with Disabilities Act (ADA) requires places of public accommodation, such as hotels, shopping centers, retailers, health care providers, restaurants, and private educational institutions, to maintain facilities accessible to the disabled. Most businesses understand their obligations to make their physical facilities accessible under the ADA. What many do not realize is that in the Internet age, ADA accessibility involves more than compliance with architectural and structural requirements for physical facilities. Companies must also ensure their websites and mobile applications are accessible to the disabled. In 2016, more than 250 lawsuits were filed against companies, primarily in the retail, hospitality, and financial services industries, alleging that the companies’ websites were inaccessible to disabled users. The exposure in these cases entails not only an injunction, but also defense costs and award of the claimants’ attorney fees. Accordingly, it is important for businesses and defense counsel to understand the need for ADA website accessibility and strategies to mitigate exposure.
Title III and Website Accessibility
Title III of the ADA states in pertinent part: “No individual shall be discriminated against 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 by any person who owns, leases (or leases to) or operates a place of public accommodation.” 42 U.S.C. §12182(a). Also, §508 of the Workforce Rehabilitation Act requires that all federal agencies and federally funded programs reasonably accommodate people with disabilities in both internal and external communications. Though the ADA’s statutory language does not address websites, the U.S. Department of Justice (DOJ), the agency responsible for regulating and enforcing the ADA, considers websites offering goods or services to consumers to be “places of public accommodation,” which must be accessible to the disabled. See 75 Fed. Reg. 43, 463. The regulations implementing the ADA list examples of auxiliary aids and services, including Braille materials and displays, screen reader software, and other means of making electronic information available to hearing and visually impaired individuals. See 28 C.F.R. 36.303(b)(2). Websites that do not support these and similar adaptive or assistive technologies potentially violate the ADA. Accordingly, unless a website is exempt, such as those of private membership clubs and religious organizations, all websites that transact business with the public are potentially vulnerable to legal scrutiny. The ADA and its implementing regulations can be enforced through private lawsuits and separately by the DOJ. 42 U.S.C. §12188. The DOJ also can intervene in private lawsuits. While private litigants may seek injunctive relief only, a successful plaintiff can seek recovery of attorney fees and costs. 42 U.S.C. §12205.
