Statutory, Regulatory and Technical Background
Title III of the ADA requires that “places of public accommodation”—public-facing businesses that fall within at least one of 12 categories—provide “equal access” to their goods, services and facilities to individuals with disabilities. Neither Title III nor its implementing regulations state how a website must be coded to comply with the law.
As a result, plaintiffs filing website accessibility lawsuits are basing their causes of action on two legal theories. The first is based on Title III’s “equal access” and general nondiscrimination mandate. The second is based on the more specific requirement that places of public accommodation provide auxiliary aids and services as may be necessary (at no extra charge) to ensure effective communication with individuals with disabilities. While websites and mobile apps are not mentioned anywhere in Title III or its regulations, the phrase “auxiliary aids and services” is defined to include “accessible electronic and information technology,” which would cover websites and mobile apps.
In 2010, the Department of Justice (DOJ) started the rulemaking process to specifically address ADA requirements for website accessibility, including technical standards for accessible websites. However, the rulemaking effort stalled for seven years during the Obama administration (even though the administration was zealously pursuing investigations and enforcement actions against businesses for not having accessible web- sites). The Trump administration pulled the plug on the rule entirely in 2017.
Throughout this time, the number of lawsuits concerning website accessibility grew exponentially, raising awareness about website accessibility among businesses, but also creating a great deal of confusion. Taking advantage of this concern, a number of new website accessibility consulting companies emerged promising inexpensive solutions, some of which have been challenged in court.
Reputable experts in website accessibility tend to agree that there is no such thing as a quick fix. In addition, the Web Content Accessibility Guidelines (WCAG) 2.0 and 2.1 Level AA, developed by the private international World Wide Web Consortium (W3C), has emerged as the benchmark standard. The general consensus is that if businesses adhere to this standard in developing, coding and maintaining websites and mobile apps, their websites will be accessible to individuals with disabilities. The WCAG is a legal requirement under some federal laws, such as Section 508 of the Rehabilitation
Act, the Air Carrier Access Act and section 1557 of the Affordable Care Act. Some courts have adopted the WCAG 2.0 Level AA as the accessibility standard for compliance in fashioning injunctive relief under the ADA.
The Lawsuit Explosion
Based on our analysis of court filings, federal courts across the country have been flooded with well over 8,000 digital accessibility lawsuits filed or removed between 2017 and 2020. In 2020, over 85 percent of these federal filings occurred in three states— New York, Florida and California.
Since 2018, website and mobile app accessibility lawsuits have made up roughly a fifth of all ADA Title III filings in federal courts, which now consistently exceed 10,000 lawsuits annually.
These numbers do not include the substantial number of website and mobile app cases filed in state courts, demand letters that are resolved prior to the filing of any lawsuit, and DOJ enforcement actions that resolve before suit is filed.
What the Courts Are Saying
While very few cases have been litigated to judgment, several themes relating to website and mobile app accessibility are emerging.
Merits decisions. Most website accessibility cases resolve early in the litigation process because the cost of defending these lawsuits is usually far higher than the cost of settlement, even when valid defenses may exist. A defendant in a website accessibility lawsuit must consider its own defense costs and the risk that it will also have to pay the plaintiff ’s reasonable fees if the plaintiff prevails.
In the relatively few cases that are litigated to judgment, the results have been mixed and highly fact-dependent. Domino’s Pizza recently lost a website accessibility lawsuit after nearly five years of intensive litigation (Robles v. Domino’s Pizza). The federal district court in California granted plaintiff’s motion for summary judgment after finding that the website was not fully accessible and ordered Domino’s to make its website comply with the WCAG 2.0. Although the court only awarded the plaintiff $4,000 in damages, the fees Domino’s will likely have to pay the plaintiff will be much higher. GNC also lost a website accessibility case on summary judgment in Gomez v. GNC, but that matter is in limbo pending a final decision by the Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc. The plaintiff in Winn-Dixie also prevailed at trial, but the decision was recently reversed by the Eleventh Circuit. That appellate decision may not be final, as the Eleventh Circuit is considering whether to grant a rehearing en banc.
In state court, the action has all been in California in cases brought under the Unruh Act—California’s analog to the ADA. Plaintiffs have prevailed on the merits in at least two cases: Davis v. BMI/ BND Travelware (2016) and Thurston v. Midvale Corp. (2018, aff ’d Ct. App. 2019). In Thurston v. Midvale, the appellate court affirmed the trial court’s order requiring the defendant to make the website conform with the WCAG 2.0 Level AA guidelines and pay $4,000 in state law statutory damages (plus attorneys’ fees and costs). In a third case, the plaintiff lost after a jury trial (Thurston v. Omni Hotels) because the jury did not believe that the plaintiff went to the website with the intent to patronize the business. The court of appeals affirmed the judgment.
Are websites covered by the ADA?
The answer depends on which federal Circuit Court of Appeals is answering the question and whether the business that owns the website has a physical place or location where it offers goods and/or service to the public. So far, the general agreement is that a website belonging to a business with a public-facing brick-and-mortar presence is covered by the ADA.
The debate rages on, however, about whether web-only businesses are also covered. The Ninth and Eleventh Circuits have made clear that websites belonging to businesses with no public-facing brick-and-mortar presence are not covered by Title III of the ADA. The Ninth Circuit took this position in Earll v. Ebay and Cullen v. Netflix, where it held that these businesses’ services—delivered through allegedly inaccessible websites—were not connected to any physical place. Taking that rule one step further, the Eleventh Circuit recently required the plaintiff in Gil v. Winn-Dixie Stores, Inc. (Apr. 7, 2021) to show that the website prevented him from accessing the goods, services, privileges or advantages of the brick-and-mortar Winn-Dixie grocery store.
The Third and Sixth Circuits have not addressed whether web-only businesses are covered by Title III of the ADA, but they have held that public accommodations covered by the ADA are limited to physical places. Thus, district courts in these circuits are likely to find that web-only businesses are not covered by the ADA.
The First Circuit, in contrast, has held that a public accommodation covered by the ADA does not have to be a physical place (Carparts Distrib. Ctr. v. Auto Wholesalers’ Ass’n of New England, 37 F.3d 12, 19-20 (1st Cir. 1994)). The First Circuit has yet to apply this precedent to a website accessibility lawsuit. However, the district courts in the First Circuit have applied the Carparts precedent to hold that websites unconnected to a physical place of business (e.g., Netflix’s streaming service) are covered by the ADA.
The Seventh Circuit only has dicta suggesting that it would find coverage for online-only businesses.
The Second Circuit has not decided the issue, and the district courts in the Second Circuit are split. Some district judges have interpreted the Second Circuit decision in Allstate v. Palozzi (2nd Cir. 1999) to mean that online-only businesses are covered by the ADA (e.g., Andrews v. Blick Art Materials, LLC (E.D.N.Y. 2017); Del-Orden v. Bonobos (S.D.N.Y 2017)). Other district judges have more recently disagreed (e.g., Winegard v. Newsday (E.D.N.Y. Aug. 16, 2021); Suris v. Gannett Co. (E.D.N.Y. July 14, 2021)), concluding that web-only businesses are not covered by the ADA.
District courts in federal circuits where the court of appeals has not decided the issue have differing views. For example, in Mejico v. Alba Web Designs, LLC (W.D. W. Va. Jan. 25, 2021), a district court in West Virginia held that web-only businesses are subject to the ADA. Similarly, a district court in Indiana, in Wright v. Thread Experiment, LLC (S.D. Ind. Jan. 22, 2021), followed Seventh Circuit guidance in finding Title III applies to a website without a nexus to a physical place. But in Zaid v. Smart Financial (S.D. Tex. Jan. 24, 2019), a Texas district court held that a website is not a place of public accommodation, even if it belongs to a business with a brick-and-mortar location. In Carroll v. Northwest Federal Credit Union (E.D. Va. 2018), the district court in Virginia also found in dicta that a website belonging to a brick-and-mortar business was not a public accommodation.
Other questions. Early on, many defendants argued that courts should not decide website accessibility lawsuits, because the DOJ had yet to issue regulations or was in the process of doing so. A corollary argument often made was that holding businesses liable under the ADA for not having an accessible website—when there are no standards for website accessibility—violates due process. These arguments have largely been unsuccessful.
Whether a business can provide telephone access instead of having an accessible website is another question that has no definitive answer. One thing is clear: Courts do not like to answer this question before allowing the plaintiff to take discovery. On summary judgment, courts will carefully consider whether the telephone access really provides equivalent access. In one case (Midvale), the court found no equivalent access, because the phone service was only open when the restaurant was open. In another case (Domino’s Pizza), the court found the 45-minute hold time to order a pizza to be far too long to be equivalent to ordering online.
Some court decisions have also focused on whether all accessibility issues on a website have been fixed, thus making the Title III claim moot. These cases have been very fact and court-specific. One key consideration has been whether the company is only in the process of making the website accessible or whether an expert can testify that the website is in fact accessible.
Standing and personal jurisdiction challenges have occasionally been successful, but they are also highly fact-specific. For example, defendants have been successful in dismissing cases on standing grounds where the plaintiff sued credit unions that, by law, the plaintiff could not join. Similarly, where the plaintiff sued educational institutions in a jurisdiction where the institutions did not have the requisite minimum contacts, courts have dismissed cases based on lack of personal jurisdiction.
Website accessibility law will continue to evolve—slowly. There are few appellate decisions, and each one prompts a flurry of questions from businesses eager for more guidance in this uncertain landscape. A few things are clear, however. Plaintiffs will continue to file lawsuits. They are pushing for coverage of sites that only provide information (e.g., news and pharmaceutical websites), investor-facing websites, B2B websites and websites unconnected to physical locations where goods and services are offered. Plaintiffs are also expanding their lawsuits to other digital assets, such as mobile apps and games. These areas are all uncharted territories ready to be mined by industrious lawyers and plaintiffs. Digital accessibility is here to stay, and businesses should proactively consider accessibility when acquiring, building and maintaining all digital assets.