Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. This was originally focused on places of public accommodation (businesses generally open to the public falling into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors' offices). The legislation requires newly constructed or altered places of public accommodation — as well as commercial facilities — to comply with the ADA Standards.
Difficulties arise when organizations are viewed beyond the physical aspects of accommodation and into their digital presence. The vast majority of web properties poorly address ADA Standards today (Note: you can easily get a free summary assessment of your website here)
These difficulties combined with a lack of clear guidelines and definitions have created an opportunity for lawyers and inconsistent litigation to fill the void. Judges are generally siding with plaintiffs confirming that ADA requirements DO in fact apply to websites. Below are 3 examples of recent digital accessibility litigation:
Lucia Marett v. Five Guys Enterprises LLC case (No. 1:17-cv-00788-KBF), wherein the court held that the law did indeed apply to websites, in dual terms of its own accountability to reasonable accommodation and as its relation to being a place of business. Although this decision was, at the time, something of an outlier, there have been many lawsuits since. Between the first and the most recent, one can draw reasonable suggestions of best practices for interpreting website accessibility requirements.
In California, for example, Gorecki v. Hobby Lobby Stores, Inc., (Case No. 2:17-cv-01131-JFW-SK) had broad implications. In the decision, the district court swept aside Hobby Lobby’s primary grounds for contention: due process and primary jurisdiction. Hobby Lobby’s argument was that the DOJ has not yet set in stone the actual regulations that businesses are legally bound to oblige. The court upheld its decision on the grounds of Title III, citing that the standard of “full and equal enjoyment” must be maintained by any public business.
Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.), U.S. District Judge Robert Scola ruled that: Winn-Dixie’s website was a “place of a public accommodation” under the ADA and issued injunctive relief and awarded attorneys’ fees. The injunctive relief included a requirement that Winn-Dixie adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria and, further, that any third-party vendors who interact with the website also must conform to such criteria.
ADA standards are issued by the Department of Justice (DOJ). The DOJ had promised earlier this year that it would adopt WCAG 2.0 AA as the standard for web accessibility regulations in 2018. This could have eliminated the murky regulations for website accessibility and reduced the complaints filed against non-compliant organizations and businesses.
However, for the first time, federal agencies have prioritized their rulemaking agendas by dividing proposed regulations into three categories: (1) priorities for the coming year; (2) actions not expected within 12 months; and (3) the inactive list, which includes regulations that have not been formally withdrawn but have no known place in the agency’s planned rulemaking. President Trump recently moved the regulation to adopt WCAG 2.0 to the “inactive list”. The placement of the ADA website accessibility regulations on the inactive list represents a significant retreat from past positions of the DOJ.
It is this climate of regulatory uncertainty, shifting priorities, and unforeseeable intentions of the federal government that makes for a volatile and litigious environment.
By not following through on the promised steps toward a more transparent standard for website accessibility, President Trump and the DOJ are contributing to the ongoing flurry of website accessibility lawsuits.
So where does this leave businesses in relation to their operations and avoiding lawsuits?
Our best recommendation of caution and jurisprudence: Commercial website publishers should research the ADA laws as they stand today and adhere to the current standards set by WCAG 2.0 at Levels A and AA. The simple decision to be proactive with website accessibility can stave off costly lawsuits as well as broaden your business’ potential audience.