Employers are undoubtedly familiar with Title I of the Americans with Disabilities Act (ADA), which prohibits discrimination in employment. However, they may not be as familiar with Title III of the ADA, which prohibits discrimination in places of "public accommodation." While claims under Title III were traditionally brought against hotels, restaurants, retailers and other public-facing businesses based on the physical inaccessibility of a brick-and-mortar location, plaintiffs' attorneys are now filing overwhelming numbers of website accessibility lawsuits under the theory that websites are places of public accommodation and that businesses violate Title III when their websites are not accessible by individuals with disabilities. As a result, any business that operates a website or mobile application can be a target for this type of claim.
Due to Title III's historical focus on the accessibility of physical premises, the most common targets of web accessibility claims are websites or mobile applications that are "heavily integrated" with or have a "nexus" to a public-facing, physical location (e.g., allowing users to place orders online and pick up in-store)—as these are more likely to be considered places of public accommodation.
Typically, plaintiffs are persons with vision or hearing impairments who claim to be unable to effectively navigate a business's website or mobile application because, inter alia, the website's coding is incompatible with assistive screen reader software that reads the screen content aloud to the user, contains visual content with no text alternative (e.g., an embedded text description that the screen reader software reads aloud as "picture of girl with ball"), contains audio content without captions or transcripts, or lacks keyboard navigation functionality to allow mobility challenged users to navigate through interactive elements such as links, buttons or input fields without the use of a mouse. These are only a few of the 78 success criteria set forth in published guidelines known as the World Wide Web Consortium's Web Content Accessibility Guidelines (WCAG) 2.1. Title III plaintiffs cannot obtain damages under the ADA, but instead seek injunctive relief, attorney fees, costs and other litigation expenses.
In the face of this booming trend of litigation, many businesses are left to wonder: Does Title III apply to our website? And, if so, how do we make our website accessible?
As to the first question, the Federal Courts of Appeals are split as to whether the term "public accommodation," as used in the ADA, refers only to an actual physical location or whether it can be applied to websites and mobile applications.
One day, the U.S. Supreme Court will weigh in on the issue, or Congress will clarify its "public accommodation" language. In the meantime, while the uncertainty of the law and the circuit splits may seem daunting, one thing is certain: Taking measures now to mitigate the risk and to make websites and mobile applications accessible is always a good idea. Websites and mobile applications can be accessed from just about anywhere, and businesses are subject to suit in any jurisdiction where their website or mobile application is accessed. Plaintiffs' attorneys are far more likely to file suit in jurisdictions that have found that stand-alone websites or mobile applications are places of public accommodation.
Accordingly, web accessibility should be a priority for all businesses everywhere. In addition to reducing legal risk, creating an accessible website or mobile application can be good for business by ensuring accessibility to the widest possible audience. Website and mobile application accessibility initiatives can contribute to an organization's focus on diversity, equity and inclusion. This all leads to the second question.
At present, web "accessibility" is a somewhat mythical term. In its most recent guidance issued on March 18, the Department of Justice reaffirmed that it has not adopted any official standard for online accessibility. However, in the same guidance it provided a link to the WCAG as an accessibility resource—thus reinforcing that the WCAG remain broadly adopted "guidelines," but not law. While an argument could be made that a website is "accessible" as long as a user with a disability is able to reasonably navigate, perceive and operate the website in a manner similar to a person who does not have a disability, for now the WCAG provides the best guidance in that regard.
To start, businesses looking to make accessibility a priority as part of their diversity, equity and inclusion initiatives, and, at the same time, to limit the risk of these increasingly prevalent lawsuits, should:
In addition to their external-facing web-based platforms, employers should not overlook the accessibility of their internal workplace technologies. These include the employment application process, completion of new-hire paperwork, online training, time-off requests and everyday communications and software usage. Indeed, since many employee tasks are completed electronically, attention should be paid to the accessibility of these systems and processes for applicants and/or employees.
Finally, businesses and employers should confer with legal counsel experienced in counseling clients on ADA website accessibility issues including engaging vendors, assisting in website accessibility audits and remediation efforts, pre-litigation dispute resolution, and website accessibility litigation.
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