WEBSITES MUST BE ACCESSIBLE TO BLIND AND VISUALLY IMPAIRED CUSTOMERS

The Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., better known by its acronym (the ADA), is being used with increasing frequency to capitalize on unsuspecting companies whose websites are inaccessible to persons with disabilities. Last year was a record setting year for website accessibility litigation and there is no sign of abating as we move in to 2017.

Title III of the ADA, with a few narrow exceptions, prohibits discrimination on the basis of a disability in places of public accommodation and requires that such places afford individuals with disabilities access to goods and services equal to that which is provided to those without disabilities. The ADA does not specifically address whether commercial websites are considered places of public accommodation. However, most courts have determined that Title III’s accessibility requirements apply to commercial websites of places of public accommodation, reasoning that website accessibility is the functional equivalent of inaccessibility to the physical store. The United States Department of Justice (DOJ), which is responsible for publishing ADA guidance, has recently extended this reasoning to mobile apps, filing lawsuits against retailers with non-compliant mobile apps. The DOJ has not yet published website accessibility guidelines (though it is noteworthy that the DOJ has incorporated W3C Web Content Accessibility Guidelines (“WCAG”) in some of its website accessibility consent decrees).  According to many commentators, the DOJ is expected to issue guidelines in 2018 though DOJ’s rulemaking process has been delayed several times already.  As a result, there is a great deal of ambiguity surrounding website compliance obligations – ambiguity that has generated litigation with increasing frequency.

Even the court system has struggled to identify the outer limits of website compliance obligations. Courts in the Third, Sixth, Ninth and Eleventh Circuits have required plaintiffs to show there is a “nexus” between a company’s website and the enjoyment of goods and services offered at a physical location of the company. In National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006), for example, the court found that Target.com violated the ADA because the website was not accessible to visually-impaired individuals and prevented them from enjoying goods and services of Target’s physical store, such as ordering prescription refills, photos, or purchasing products. Notably, courts in the First and Seventh Circuits have demanded website compliance without regard to whether companies operate a physical location that has traditionally been considered a place of public accommodation.

Notable cases from 2016 include the following:

• Marett v. Capital Grille Holdings, Inc., No. 1:16-cv-08913 (S.D.N.Y. 2016). Plaintiff brought this case as a class action on behalf of a group of similarly situated (blind) individuals.  Plaintiff was allegedly unable to make dinner reservations on The Capital Grille’s website. Plaintiff claimed defendant’s website was inaccessible, in relevant part, because it was an “entirely visual interface” and that it was unable to interface with assistive screen-reading software. The case is ongoing.
• Marett v. Rosewood Hotels and Resorts, L.L.C., No. 1:16-cv-08877 (S.D.N.Y. 2016). Plaintiff brought this case as a class action on behalf of a group of similarly situated (blind) individuals. Plaintiff was allegedly unable to make a reservation, read testimonials, or provide the same through the hotel’s website. Plaintiff asserted that that the website was not compatible with the use of special keyboards and screen reading software and that the website failed to use alternative text, accessible forms, descriptive links, resizable text. The case is ongoing.
• Jahoda v. Nat’l Basketball Assoc., No. 2:15-cv-01462 (W.D.P.A. 2015). Plaintiff filed a class action lawsuit against the National Basketball Association (NBA). Therein, it was alleged that the NBA’s website violated the ADA because visually-disabled individuals are unable to access all of the website’s features, even with the aid of assistive software. Plaintiff sought to have the NBA create and utilize an internal management team that would develop web-based content in an accessible manner. The case settled in 2016 before a decision was reached on the merits.
• Dudley v. Miami University, et al., No. 1:14-cv-00038 (S.D. Ohio 2014). Miami University entered into a Consent Decree with the DOJ requiring the University to ensure that its web content and other technologies comply with the WCAG 2.0 standards. The decree also required the University to revise its technology procurement standards to ensure future compliance.

As 2017 begins, there is no sign that ADA website accessibility litigation is abating.  Companies should consult with their attorneys to determine whether or not they are considered a place of public accommodation under the ADA.  They should also audit their website(s) to determine whether they should remediate accessibility barriers; whether they should conduct ADA training for responsible stakeholders; whether they should update their ADA policies and procedures; as well as taking other important steps to put them in the best possible position to defend against website accessibility litigation.

–Contributed by Kelly H. Kolb, Esq., of CSAA member Buchanan, Ingersoll & Rooney, PC. Kolb participated in the panel discussion “The Impact of the New Overtime Rule and Minimum Wage Increases on Your Business” at the 2016 CSAA Annual Meeting and is a contributor to CSAA Dispatch.