CLIENT ALERT
Website Violations of the Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) 42 U.S.C.S. §12101 et. seq., a federal law prohibiting discrimination against disabled individuals, recently has been the subject of claims against business websites. These claims allege that the websites at issue violate the ADA because they do not allow disabled persons to fully access and utilize the sites.
Claim Details
Title III of the ADA requires private businesses that serve the public (“public accommodations”) to ensure equal access to their goods and services. The ADA definition of public accommodation lists specific private entities that are considered public accommodations under the law. Most of these entities are physical locations, such as hotels, restaurants and retail stores. The definition does not specifically identify websites as public accommodations.
Although websites are not included in the ADA definition of public accommodation, there have been many lawsuits alleging that business websites are public accommodations subject to the ADA. A large number of these suits focus on visually impaired individuals who attempt to use screen reader software to access and utilize websites. If the websites are not compatible with the screen readers, visually impaired individuals may not be able to access all of the websites’ features. These suits allege that this violates the ADA because the disabled individuals do not have an equal opportunity to access the business’s good or services.
These suits have had varying success throughout the country because the federal courts are split on the interpretation of the ADA and whether websites are public accommodations subject to the law. The three prevailing views are: (1) public accommodations are strictly limited to physical spaces, excluding websites entirely; (2) stand-alone websites are not public accommodations, but websites may be covered by Title III of the ADA if they have a sufficient "nexus" to a physical location; and (3) websites are public accommodations even if they do not have a connection to a physical location. The First Circuit, which covers Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico, holds the third view. The Second Circuit, which covers Vermont, New York and Connecticut has yet to definitively decide the issue. However, the majority of district courts within the Second Circuit addressing the question have aligned themselves with the third view.
Although the Department of Justice (“DOJ”) has issued informal guidance indicating that the ADA is applicable to websites, it has not issued universally applicable regulations or established specific compliance requirements for websites. The DOJ has promulgated narrow regulations that apply to the websites of public entities, which will take effect beginning on April 26, 2027, and April 26, 2028, depending on the size of the entity. These regulations require that the websites and mobile apps of public entities comply with Levels A and AA WCAB 2.1 requirements, which are explained in greater detail below. While the DOJ view has not resolved the federal court split overall, these regulations will impact the requirements for state and local government websites.
Due to the circuit split, the viability of these ADA claims is highly dependent on the federal court in which the claim is brought. Further, businesses face varying legal obligations depending on their physical presence and geographic jurisdiction. If your business is the subject of one of these ADA claims, the attorneys in our Business Litigation Practice Group are available to help determine the best response.
There are proactive steps that businesses can take to help avoid these claims. Although the DOJ has not promulgated formal regulations for website compliance for private businesses, it has pointed to the Web Content Accessibility Guidelines (WCAG) as a model. The DOJ states that “Existing technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 [of the Rehabilitation Act of 1973 as amended] Standards, which the federal government uses for its own websites. Check out the resources section for more reference.” See https://www.ada.gov/resources/web-guidance/. Further, the DOJ has provided guidance stating that a public accommodation with an inaccessible website may meet its legal obligations by providing an "accessible alternative" that offers an equal degree of access, such as a 24/7 staffed telephone line, if the website is available 24/7. See 28 CFR PART 36 APPENDIX A.
The WCAG, developed by the World Wide Web Consortium (aka “W3C”), provide technical standards for making websites accessible to individuals with disabilities. There are different versions (e.g., 2.1, 2.2) and different conformance levels (A – minimum, AA – Intermediate, and AAA – exemplary). While Version 2.1 has been the standard for some time, Version 2.2 increases accessibility success by adding nine new success criteria.
Similar accessibility laws exist in countries outside the United States as well. At present WCAG 2.1, level AA seems to be the most widely accepted standard internationally, but businesses should monitor the evolving WCAG versions and success levels, and revise their operations accordingly to comport with the updated criteria. Implementing appropriate accessibility measures is important for protecting against the risk of accessibility lawsuits, including class actions. Additionally, it is best practice to notify your insurer of an ADA claim if your business is the subject of one.
Sheehan Phinney's Data Privacy and Security Practice Group
Coleen and Douglas are members of the firm’s Data Privacy and Security Practice Group where Douglas serves as Co-Chair. Our team helps you prepare for, mitigate and manage data breaches, in addition to ensuring compliance with the latest state, federal and foreign privacy laws - establishing proper physical, technological and administrative measures to protect your data subjects. We work collaboratively with IT security specialists and even provide detailed training to your employees to reduce risk across your entire organization.
This Client Alert is provided for informational purposes only and does not constitute legal advice or establish an attorney-client relationship. Readers should not act upon the information contained in this alert without seeking advice from qualified counsel. Prior results do not guarantee similar outcomes.