This past decade has seen a growing trend in lawsuits filed by both individuals and advocacy groups against public and private entities claiming disability discrimination under the Americans with Disabilities Act (ADA) for failure to provide access to web content. This growing trend in claims has been directly linked to the increase in e-commerce, and services provided online, particularly during the COVID-19 pandemic.
Web accessibility for people with disabilities is also a stated priority for the U.S. Department of Justice (DOJ). According to the DOJ’s recently published “Guidance on Web Accessibility and the ADA,” inaccessible web content means that people with disabilities are denied equal access to information, including finding up-to-date health and safety resources, and being able to look up mass transit schedules and fares and voting information.
The ADA does not directly address whether places of public accommodation include websites, mobile applications, or other emerging web-based technologies. The DOJ has also thus far declined to enact regulations establishing accessibility standards (although the DOJ recently announced its intent to establish new regulations providing technical standards for website accessibility under Title II of the ADA). Nonetheless, state and local governments, and businesses open to the public, should be aware of the trending awareness and legal activity in this area, and consider taking proactive steps to increase accessibility to their websites.
This article will discuss examples of website accessibility barriers, web accessibility under the ADA, and landmark website accessibility lawsuits.
Individuals and advocates generally argue that people with disabilities are unable to use a business’s website and that they are thereby denied equal access to the goods and services of a place of public accommodation. The DOJ has provided the following as examples of website accessibility barriers:
Inaccessible online forms. People with disabilities may not be able to fill out, understand and accurately submit forms without:
No captions on videos. People with hearing disabilities may not be able to understand information communicated in a video if the video does not have captions.
Poor color contrast. People with limited vision or color blindness cannot read text if there is not enough contrast between the text and background (for example, light gray text on a light-colored background).
Lack of text alternatives (“alt text”) on images. People who are blind will not be able to understand the content and purpose of images, such as pictures, illustrations and charts, when no text alternative is provided. Text alternatives convey the purpose of an image, including pictures, illustrations, charts, etc.
The ADA applies to state and local governments (Title II) and businesses that are open to the public (Title III).
Title II of the ADA prohibits discrimination against people with disabilities in all services, programs and activities of state and local governments. In its guidance, the DOJ has stressed that a website with inaccessible features can limit the ability of people with disabilities to access a public entity’s programs, services and activities available through that website. As a result, the DOJ takes the position that the ADA’s requirements apply to all the services, programs or activities of state and local governments, including those offered on the web (and has announced its intent to establish new regulations under Title II).
Title III of the ADA requires that places of public accommodation provide equal access to their goods, services and facilities to disabled individuals. At the time the ADA was enacted, places of public accommodation were typically physical locations, such as storefronts and restaurants. With the explosion of e-commerce, and increased use of the internet for services, some courts (including the First Circuit) have found that websites are places of public accommodation (irrespective of whether the business in question also has a public-facing brick and mortar presence), while other courts (recently the Eleventh Circuit) have ruled they are not. The U.S. Supreme Court has thus far declined to consider an ADA website accessibility case, leaving, for now, a split among the federal circuits.
The Web Content Accessibility Guidelines (WCAG), developed by the Web Accessibility Initiative of the World Wide Web Consortium (a private organization), are a set of recommendations for making web content more accessible for people with disabilities.
The WCAG have emerged as an acceptable standard for judging website compliance with the ADA. Some, but not all, courts have stated that if a website is compliant with the content accessibility standard, that satisfies the requirements of the ADA. In its guidance, the DOJ references the WCAG as technical standards that provide helpful guidance concerning how to ensure accessibility of website features. The ADA itself, however, makes no reference to the WCAG.
Carparts Distribution Center Inc. v. Automotive Wholesaler’s Association of New England Inc., 37 F.3d 12 (1st Cir. 1994). While not a website accessibility case, the First Circuit’s ruling laid the groundwork for website accessibility cases that followed. Here, the plaintiffs brought suit under the ADA against a private association that operated a health plan. The First Circuit considered whether “establishments of public accommodations” are limited to actual physical structures. The court found that “they are not so limited,” and went on to say that an insurer who provides services over the telephone or by mail could be considered a place of public accommodation under the ADA.
National Association of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012). The plaintiffs alleged that much of the content on the streaming platform’s “Watch Instantly” feature did not include closed captions or subtitles, and thus violated the ADA. In denying Netflix’s motion to dismiss, the judge ruled that Netflix’s video streaming website was a place of public accommodation within the meaning of the ADA, despite the company’s contentions that the ADA did not include web-based services as a specific example of a public accommodation, and that the website could only be accessed in private residences.
Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). The plaintiff, who was blind, filed a lawsuit accusing the pizza chain of violating Title III of the ADA. Specifically, he claimed that Domino’s website and mobile app were inaccessible for screen reader users. In defense, Domino’s argued that because the ADA doesn’t contain technical requirements for web accessibility, Title III did not apply. In reversing the lower court’s decision dismissing the plaintiff’s action, the Ninth Circuit wrote, “while we understand why Domino’s wants the DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.”
National Association of the Deaf v. Harvard University, 377 F.Supp.3d 49 (D. Mass. 2019). The plaintiffs alleged that the university’s failure to provide accurate and timely captioning of online audiovisual content hosted by university and third-party websites constituted discrimination against deaf persons in violation of the ADA. In denying the university’s motion to dismiss, the judge ruled that online audiovisual content hosted by the university’s website, including video recordings of class lectures made freely available to general public, was subject to the antidiscrimination requirements in Title III of the ADA, notwithstanding any lack of nexus to a physical place, and regardless of whether the audiovisual content originated with a third party, where the university was a public accommodation.
Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021). The plaintiff, who was legally blind, brought suit against Winn-Dixie claiming he was unable to use the grocery store’s website. In ruling that websites are not places of public accommodation, the Eleventh Circuit noted that the ADA “describes twelve types of locations that are public accommodations. All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places.”
Plaintiffs have experienced consistent success in website accessibility lawsuits across multiple jurisdictions, including Massachusetts, in recent years. In addition, the DOJ recently published website accessibility guidelines, and has made clear that web accessibility is a priority.
Massachusetts businesses, and state and local governments, with public-facing websites should be mindful of the trends, growing legal precedent, and the DOJ’s stated priority in this area, and seek to avoid potential exposure under the ADA by ensuring that their websites are compliant with commonly accepted standards of accessibility.
* This article was first published in the March/April issue of the Massachusetts Bar Association’s Section Review.