February 01, 2016
Businesses frequently view HR professionals and employment lawyers as subject matter experts on the topic of compliance with the Americans with Disabilities Act (ADA). However, those of us in this field are quick to acknowledge that the ADA applies to numerous areas outside of the traditional employment context, including the relationship between businesses and their customers. For example, the dramatic increase in online commerce over the last several years presents a challenging issue which the drafters of the ADA never contemplated: Do the requirements of the ADA apply when a business offers information or shopping capabilities to consumers online?
The U.S. Department of Justice (DOJ), the agency charged with enforcing Title III of the ADA, will not be assisting in resolving or in clarifying this issue any time soon, after recently announcing that it will delay proposed rules regarding the accessibility of websites operated by public accommodations to fiscal year 2018. Fall 2015 Statement of Regulatory Priorities, http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html ("DOJ Statement") at 4.
Companies have been anticipating these regulations since 2010, hoping that the DOJ would clarify whether and the extent to which the ADA's accessibility standards apply to online business operations. And the absence of clear guidance does not counsel toward a "wait and see" response from the business community, because in the interim, the DOJ and plaintiffs' counsel are applying pressure on companies to address the accessibility of their websites through enforcement actions and lawsuits, resulting in a number of high-value settlements and consent decrees. This article highlights the conflicting precedent in federal courts regarding whether the ADA applies to websites, outlines the actions previously taken by DOJ and offers businesses some prophylactic tips for reducing the risk of litigation.
In 1990, Congress passed the ADA, a civil rights law dealing with the rights and privileges of individuals with disabilities. Title III of the ADA prohibits discrimination based on disability in places of public accommodation. See, 42 U.S.C. §12181-89. The act lists 12 categories of locations that fall within the ADA's scope, including places of lodging, sales or rental establishments, service establishments, and places of exercise or recreation. Id. at §12181(7).
Courts have recognized that the ADA's accessibility requirements apply to traditional "brick and mortar" retail locations. These stores are among the actual physical locations provided as examples within the act's definitions, or sufficiently analogous to fall within the purview of the ADA. However, as Congress passed the ADA in 1990, before the World Wide Web became publicly available, Congress could not have known the extent to which online shopping would shape commerce. This has created an uncertain landscape for retailers and plaintiffs alike, as the ADA provides little, if any, guidance as to whether company websites constitute "public accommodations" under the ADA.
No Consistent Precedent
Courts have provided little clarity on this issue, as different jurisdictions have come to varying conclusions regarding whether websites constitute public accommodations under the ADA. These disparate outcomes fall under three general categories: (1) websites are not physical locations like the examples listed in the statute, so they cannot be public accommodations under the ADA; (2) websites may constitute public accommodations if there is a nexus between that website and a physical location that does fall into the enumerated categories under the ADA; or (3) websites themselves can constitute public accommodations under the ADA, even if the websites do not have any nexus to a physical location.
The U.S. Court of Appeals for the Ninth Circuit has defined the ADA narrowly with respect to website accessibility. In Earll v. eBay, 599 F. App'x 695 (9th Cir. 2015), the court held that "because eBay's services are not connected to any actual physical place, eBay is not subject to the ADA." Id. at 696 (citing Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000)). While not dealing directly with the question of websites, opinions from other circuits similarly have stated that "public accommodations" unambiguously refer to physical spaces, which suggests they would adopt a similarly narrow view with respect to websites. See Ford v. Schering–Plough Corp., 145 F.3d 601 (3d Cir. 1998); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (en banc).
Nat'l Fed'n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006) best exemplifies the "nexus" approach, in which associations of the blind and blind customers brought a class action suit against Target under the ADA alleging that the retailer's website was inaccessible to the blind. The court held that, to the extent the plaintiffs alleged that the inaccessibility of the website impeded the full and equal enjoyment of goods and services offered in physical Target stores, the plaintiffs stated a claim. Id. at 956. However, information and services unconnected to physical stores, and which did not affect the enjoyment of goods and services offered in physical stores, could not form the basis of a claim under the ADA.
The court in Nat'l Ass'n of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012) adopted the most expansive approach. In that case, the National Association of the Deaf brought suit against Netflix seeking injunctive and declaratory relief requiring the company to provide closed captioning for all streaming content. Even though Netflix offers an entirely web-based service and did not have any physical retail locations, the court stated that "the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology." Id. at 200-201. The court held that Congress did not intend to limit the ADA to the specific examples listed in the definitions, and that the website fell under at least one, if not more, of the enumerated ADA categories, including a "service establishment." Id. at 201. See also Nat'l Fed'n of the Blind v. Scribd, 97 F.Supp.3d 565, 574-576 (D. Vt. 2015).
In 2010, the DOJ issued an advance notice of proposed rulemaking. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 142 (proposed Jul. 6, 2010) (to be codified at 28 C.F.R. pt. 35-36). The notice stated that DOJ was considering whether to amend its regulations to "require…public accommodations that provide products or services to the public through websites on the Internet to make their sites accessible to and usable by individuals with disabilities under the legal framework established by the ADA."
The DOJ publication highlighted previous affirmations of the applicability of Title III to websites of public accommodations, including an amicus brief filed in the U.S. Court of Appeals for the Eleventh Circuit in Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002). The DOJ argued that a business providing services solely over the Internet is subject to the ADA's prohibitions on discrimination, and specifically rejected the "nexus" approach, saying there did not need to be any connection between a challenged activity and a private entity's "brick-and-mortar" facility for Title III to apply. See Brief for the United States as Amicus Curiae in Support of Appellant, available at http://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/rendon.pdf. The DOJ has since reaffirmed this expansive approach in statements of interest submitted in federal cases. The DOJ has also brought several enforcement actions against companies regarding the accessibility of their websites.
These publications and enforcement actions strongly suggest that the DOJ will opt for an expansive approach to coverage of websites under the ADA, and will not require any nexus to an actual, physical location. Further, while the proposed regulations will not be promulgated until 2018 at the earliest, this will only serve to apprise employers of the specific requirements that may be imposed, and the DOJ has taken the position that the general requirement of website accommodation for disabled individuals already exists.
While the DOJ's comments suggest that its rules will align with the approach of the court in Nat'l Ass'n of the Deaf v. Netflix, judges have looked directly to the text of the statute to determine coverage under the ADA. If the regulations become final, courts will still look first to see whether the text of the ADA allows for the possibility that websites are covered, as the court did in Earll v. eBay. If the court is convinced that the text does not contemplate application to the Internet, the court need not defer to the DOJ's expansive interpretation.
Unfortunately, companies will continue to face uncertainty regarding their website practices. The case law is still developing in many jurisdictions, and while some have favorable precedent for retail operators, the global nature of the Internet leaves defendants susceptible to forum shopping by plaintiffs' counsel. The DOJ's statements and enforcement actions also suggest that any regulations eventually promulgated will apply to any and all commercial websites, regardless of whether the entity operates a physical location.
Companies must weigh the risk of litigation and compare the costs of potential lawsuits to the cost of modifying their websites as a prophylactic measure. There are a number of industry standards that companies could consult in determining whether their websites are accessible to disabled consumers. Many resources (including the DOJ itself) have referenced Version 2.0 of the Web Content Accessibility Guidelines published by the World Wide Web Consortium. These guidelines include (1) providing text alternatives for any non-text content so that it can be converted into braille or speech by assistive programs, (2) ensuring all functions can be performed with a keyboard, (3) providing headings for content so that users can navigate directly to their area of interest, and (4) providing resources for consumers if they have difficulty accessing certain content. https://www.w3.org/TR/WCAG20/.
Companies could review these guidelines with their technical departments or vendors to determine the feasibility and cost of compliance. Companies also could consult organizations of disabled consumers or retail organizations to determine the most impactful and practical accessibility modifications for their specific service—which could avoid costly modifications that do not provide much in the way of value or highlight smaller changes that could provide similar benefits to massive overhauls. Companies should particularly consider these measures when planning or developing new parts of their website. These resources can provide a road map for companies to make increasing accessibility as painless as possible.
 See Phil Wahba, "More Americans Shopped Online than at Stores over Black Friday Weekend," Fortune, (Nov. 29, 2015), http://fortune.com/2015/11/29/online-shoppers-black-friday/.
 Target agreed to pay class damages and attorney fees of close to $10 million to settle a class action lawsuit filed by the National Federation of the Blind. https://www.w3.org/WAI/bcase/target-case-study. To resolve a lawsuit from the DOJ and the National Federation of the Blind, H&R Block agreed to pay $100,000 in civil penalties and damages and to conform its online offerings to certain accessibility standards. http://www.ada.gov/hrb-cd.htm. Carnival Corp. agreed to pay over $400,000 to settle with the DOJ regarding a variety of accessibility issues, including issues with its website and mobile applications. http://www.justice.gov/opa/pr/justice-department-reaches-agreement-carnival-corp-over-ada-violations-carnival-cruise-line. Suits have also been brought against Disney (http://www.prweb.com/releases/2011/02/prweb5073794.htm), Reebok (http://www.retailingtoday.com/article/lawsuit-highlights-importance-ada-compliance), and Toys R Us (http://pennrecord.com/stories/510637970-blind-woman-sues-toys-r-us-alleging-violation-of-federal-disabilities-act).
 David New, individually and on behalf of all others similarly situated, Plaintiff, v. Lucky Brand Dungarees Stores, d/b/a Lucky Brand Jeans, Defendant., 2014 WL 1868858 (S.D.Fla.) ("[T]he Department has long considered websites to be covered by title III…"); National Association of the Deaf, Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles, Plaintiffs, v. Netflix, Defendant, 2012 WL 1834803 (D.Mass.) ("The absence of web-based services as a specific example in these categories is not surprising…[f]urther, such absence does not mean that such services aren't included. Congress intended that the statute not be limited to the specific examples listed in each category.").
 Two of these enforcement actions include those against H&R Block and Carnival Corp., discussed infra in note 2.
Reprinted with permission from the February 1, 2016 edition of the New York Law Journal © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.