When the Americans with Disabilities Act (ADA) was enacted in 1990, the Internet as we know it today did not exist. Now, Americans use the Internet in their daily personal, professional, civic, and business lives. Increasingly, businesses and educational institutions are providing goods and services to the public through websites, including offering degree programs online. Similarly, many state and local governments are using websites to provide the public access to their programs, services, and activities.
For individuals with disabilities who experience barriers to their ability to travel or to leave their homes, the Internet may be their only way to access certain goods and services. Millions of individuals in the United States have disabilities that can affect their use of the web. Many of these individuals use assistive technology to enable them to navigate websites or access information contained on those sites. For example, individuals who have mobility impairments with their hands may use speech-recognition software to navigate a website. Individuals with vision impairments may rely on a screen reader to convert the visual information on a website into speech. Many websites may not incorporate or activate features that enable users with disabilities to access all the site’s information or elements. For example, individuals who have hearing impairments may be unable to access information in web videos and other multimedia presentations that do not have captions. Individuals with low vision may be unable to read websites that do not allow the font size or the color contrast of the site’s page to be modified. Individuals with limited manual dexterity who may use assistive technology that enables them to interact with websites cannot access sites that do not support keyboard alternatives for mouse commands. These same individuals, along with individuals with intellectual and vision disabilities, often encounter difficulty using portions of websites that require timed responses from users, but do not give users the ability to indicate that they need more time to respond.
Individuals with vision impairments can have significant barriers to web access. This is because many websites provide information visually, without features that allow screen readers or other assistive technology to retrieve information on the site so that it can be presented in an accessible manner. The most common barrier to website accessibility is an image or a photograph without corresponding text describing the image. A screen reader or similar assistive technology cannot "read" an image, leaving individuals who are blind with no way of independently knowing what information the image conveys (e.g., a simple graphic or a link to another page). Similarly, complex websites can lack navigational headings or links that would facilitate navigation using a screen reader or may contain tables with header and row identifiers that display data, but do not provide associated cells for each header and row so that the table information can be interpreted by a screen reader.
Online forms, which are a critical part of accessing goods and services on many websites, can be inaccessible to individuals with disabilities. For example, field elements on forms (the empty boxes that hold specific pieces of information, such as a last name or a telephone number) may lack clear labels, and visual CAPTCHAs (Completely Automated Public Turing Test to tell Computers and Humans Apart; distorted text that must be inputted by a website user to verify that a web submission is being completed by a human rather than a computer) may make it difficult for persons using screen readers to make purchases, submit donations, and otherwise interact with a website. These barriers obviously can impede the ability of individuals with disabilities to fully enjoy the goods, services, and programs offered on the web by entities covered under Titles II and III of the ADA. Accessibility of Web Information and Services of State and Local Government Entities Advance Notice of Proposed Rulemaking, 75 Fed. Reg. 43,460, at 43,463 (proposed July 26, 2010) (to be codified at 28 C.F.R. pts. 35 and 36).
ADA’s Application to Websites
Title III of the ADA provides "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a) (2011). Title III and its corresponding regulations define a "place of public accommodation" as a facility whose operations affect commerce and falls within at least one of the following 12 categories:
(A) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;
(B) A restaurant, bar, or other establishment serving food or drink;
(C) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) An auditorium, convention center, lecture hall, or other place of public gathering;
(E) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) A terminal, depot, or other station used for specified public transportation;
(H) A museum, library, gallery, or other place of public display or collection;
(I) A park, zoo, amusement park, or other place of recreation;
(J) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
42 U.S.C. § 12181(7); 28 C.F.R. § 36.104 (2013).
The Department of Justice’s (DOJ) position is that Congress contemplated the agency would apply the ADA in a manner that evolved over time, and it delegated authority to the attorney general to promulgate regulations to carry out the ADA’s broad mandate. See H.R. Rep. No. 101-485, pt. 2, at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 418; 42 U.S.C. 12186(b) (“[T]he Attorney General shall issue regulations in an accessible format to carry out the provisions of this title.”). Consistent with this, the DOJ stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies. 28 C.F.R. pt. 36 app. B.
Section 12182 of Title III provides that no person "who owns, leases (or leases to), or operates a place of public accommodation" may discriminate "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a) (emphasis added). Similarly, Title II provides that qualified individuals with disabilities shall not be excluded from "participation in or be denied the benefits of the services, programs, or activities of a public entity [state and local government entities]." 42 U.S.C. § 12132 (emphasis added).
The DOJ interprets these statutory provisions to apply to discrimination in offering the goods and services "of" a place of public accommodation or the services, programs, and activities "of" a public entity—rather than being limited to those goods and services provided "at" or "in" a place of public accommodation or facility of a public entity—and relies on several court decisions in support of the application of the ADA’s accessibility requirements to websites.See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in a website-access case that "[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute"); see also Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1285 (11th Cir. 2002) (finding that discrimination did not have to occur on site to violate the ADA);Carparts Distrib. Ctr. v. Auto. Wholesaler’s Assoc. of New England, 37 F.3d 12 (1st Cir. 1994) (concluding that Title III is not limited to provision of goods and services provided in physical structures, but also covers access to goods and services offered by a place of public accommodation through other mediums, such as telephone or mail). But see Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114–16 (9th Cir. 2000) (requiring some connection between the goods or services complained of and an actual physical place);Ford v. Schering-Plough Corp., 145 F.3d 601, 612–13 (3d Cir. 1998) (finding no nexus between challenged insurance policy and services offered to the public from insurance office); Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1318 (S.D. Fla. 2002) (finding a website is only covered if it affects access to a physical place of public accommodation). Instead, the ADA mandate for "full and equal enjoyment" requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via websites.)
Pending DOJ Rulemaking
Section 204 (a) of Title II and section 306(b) of Title III direct the attorney general to promulgate regulations to carry out the provisions of Titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. §§ 12134, 12186(b) (2011). Although the DOJ has promulgated specific accessibility standards for covered entities to comply with the requirements of Titles II and III of the ADA, there are no web accessibility standards in the current regulations implementing Title II and III of the ADA. However, the DOJ has announced that it intends to revise the regulations implementing Titles II and III to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web, accessible to individuals with disabilities. The DOJ issued an advance notice of proposed rulemaking (ANPRM) dated July 26, 2010, to solicit public comment on various issues relating to the potential application of such requirements. See 75 Fed. Reg. 43,460, at 43,460 (proposed July 26, 2010) (to be codified at 28 C.F.R. pts. 35 and 36). On January 8, 2012, the DOJ announced that the agency was dividing the rulemakings in the next step of the rulemaking process so as to proceed with separate notices of proposed rulemakings for Title II and Title III. See Unified Agenda, 78 Fed. Reg. 1317, at 1415 (Jan. 8, 2013).
The DOJ further announced that it intended to issue the notice of proposed rulemaking (NPRM) under Title II in July 2013 and a NPRM under Title III in December 2013. See Off. of Mgmt. and Budget, Accessibility of Web Information and Services of State and Local Government “View Rule” Webpage (last visited Mar. 29, 2013). The accessibility standard the DOJ adopts will most likely be some form of the Worldwide Web Consortium’s (WC3) Website Content Accessibility Guidelines (WCAG) version 2.0. WC3, Web Content Accessibility Guidelines (WCAG) 2.0 (Dec. 11, 2008). The guidelines are intended for all web content developers (page authors and site designers) and for developers of authoring tools. The DOJ has deemed website accessibility under the ADA as "economically significant" for covered entities, meaning that the regulations will have an annual effect on the economy of $100 million, or adversely affect in a material way the economy; a sector of the economy; the environment; public health or safety; or state, local, or tribal governments or communities.
As it appears the DOJ is preparing to issue standards governing web accessibility under the ADA, covered entities should assess with their IT professionals and attorneys whether their websites are accessible to individuals with disabilities and whether doing so would as a legal matter pose an undue hardship or fundamentally alter the nature of the goods or services provided. Based on the assessment and any accessibility barrier discovered, covered entities should map out a plan to make their websites accessible even in advance of the looming regulatory action from the DOJ. Covered entities whose websites are inaccessible to individuals with disabilities may be the targets of lawsuits filed; therefore, it behooves employers to review the accessibility features of their websites and Internet-based services consistent with the accessibility issues outlined above.
Keywords: litigation, employment law, labor relations, accessibility, ADA, internet, websites, screen reader, Title II, Title III
Joseph J. Lynett and John A. Snyder are partners at Jackson Lewis LLP in White Plains and New York, New York, respectively.
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