Is Your Website Compliant with the Americans With Disabilities Act (“ADA”)? Print PDF
Your first question when reading the title of this article may be: “What does the ADA have to do with my company’s website?”
While it is true that most claims under the ADA deal with access to physical places of public accommodation, like government and commercial facilities (e.g. lack of wheelchair ramps), over the past few years there have been a significant number of lawsuits alleging that disabled plaintiffs could not use websites because they did not have assistive technologies to accommodate a particular disability. And recently these lawsuits have not just been targeting websites, but mobile apps as well.
This trend has not slowed down, as these lawsuits increased 64% in the first half of 2021 over the same period in 2020. These lawsuits, filed in federal and state courts (with the majority brought in New York and California), have most often targeted e-commerce companies, accounting for 74% of the total cases brought in federal courts. In addition, not only large companies are targeted; in the first half of 2021 there were double the number of lawsuits against companies with annual revenue below $50 million than those against companies with annual revenues above $50 million.
For a website to be accessible to disabled people, it must maximize compatibility with assistive technologies on user computers and devices. For example: (a) video must include descriptions for those with hearing disabilities; (b) text alternatives for any non-text content must be provided so that it can be changed into usable forms for those with sight disabilities, such as large print, braille, speech, symbols or simpler language; and (c) all interactive functions must be operable through keyboard commands for people who can’t use a mouse.
To date, the federal government has not issued formal standards for private businesses to follow to ensure their websites comply with the ADA. Accordingly, many private businesses are unaware that the lack of accessibility is even an issue, and the cost of overhauling a website can be prohibitively expensive depending on the site’s complexity.
Plaintiff’s attorneys are taking advantage of the lack of governmental regulation and the unfamiliarity of ADA regulations by private business owners. This leads to a scramble to get compliant when a lawsuit is brought against a company.
Unfortunately, it can take a significant amount of time (and cost) to attain compliance. In addition, most plaintiffs’ attorneys demand huge damage payouts without first giving the company the opportunity to get compliant. And regrettably, as with many lawsuits, it is often more cost effective to settle rather than fight in court.
Accordingly, many business owners are stuck paying settlement amounts (and legal bills) in addition to the expenses of effectuating ADA compliance. However, some companies and trade groups have fought back against these lawsuits, resulting in some clarity from the courts.
In early 2019, the Ninth Circuit Court of Appeals issued a ruling in the Domino’s case (Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2018)), which resulted in a victory for plaintiffs but also provided some guidance that may be useful for defense attorneys. The court confirmed that the ADA applies to Domino’s website and mobile app, stating that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”
It also repeated its position that, to be covered by the ADA, it is critical that a website or mobile app have a nexus to a physical place of public accommodation (in this case, the physical Domino’s locations). This may provide defense attorneys with an argument if their clients do not have a physical location.
Further, while the court did not express any opinion about whether Domino’s website or mobile app complies with the ADA (it remanded that issue to the lower court), it did state that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”
Domino’s continued its battle by petitioning the Supreme Court for a review of the Ninth Circuit’s decision. Domino’s argued that the Ninth Circuit’s decision and other recent court rulings would turn the increase in these types of cases from a flood “into a tsunami.” Further, the decision could result in inconsistent enforcement that forces businesses to incur high and unnecessary costs to comply.
In addition, businesses would be required to overhaul their websites without any guidance on how to make websites compliant with ADA. In late 2019, the Supreme Court denied Domino’s petition, resulting in a win for disability advocates. And then, on remand, on in June 2021 the lower court ruled that Domino’s violated the ADA by not providing a website that was fully accessible, and ordered Domino’s to bring its website up to compliance with WCAG 2.0 standards.
However, also in 2021, the Eleventh Circuit ruled in the opposite direction in a case involving Winn-Dixie Gil v. Winn-Dixie appeal, holding generally that unless congressional action formally broadens the definition of “places of public accommodation to include websites,” a website’s lack of accessibility does not give rise to a potential violation of the ADA. While this is a significant departure from the findings of many other courts, it applies only in federal (and not state) courts located in Alabama, Florida and Georgia (hence the significant amount of cases brought in New York and California)
Further, the Department of Justice (DOJ) has taken the position (and has on multiple occasions reaffirmed its position) that the ADA covers websites, and has even taken action against certain businesses (including HR Block, Miami University and Carnival Cruise Line), mandating WCAG 2.0 conformance.
What Should Private Business Owners Do?
Given the current landscape, it is critical to perform an accessibility assessment of your website (and potentially any mobile apps). A group of web professionals has created guidelines, known as the Web Content Accessibility Guidelines, which can be consulted for guidance on how to make websites more accessible to disabled people.
Further, there are numerous free online assessment tools, including many that perform a scan of the website to determine accessibility, and several companies offer assessments for a fee. Once any deficiencies are identified, you should seriously consider undertaking all required updates to become ADA-compliant, which will likely have associated fees (but beware that will likely not be cheap).
Further, you should review applicable insurance policies to determine whether your company’s coverage expressly covers these types of claims. Since most of these claims are based on a variety of accessibility discrimination claims, your company’s policies need to cover accessibility discrimination claims encompassing all facilities, including websites and mobile apps.
In addition, while some policies may provide coverage for defense costs and monetary judgments, they do not necessarily cover the costs to bring a website in compliance (which could be the most expensive aspect). If your policies do not provide sufficient coverage, you will need to undertake a cost-benefit analysis to weigh the costs of additional insurance (and the potential costs of becoming ADA-compliant) against the perceived risk of having such an action brought against your company. In any event, do not sit around and wait for a demand letter!
The foregoing information is provided only for general reference. It does not constitute legal advice. Legal advice may be provided based only on specific facts. Please consult Parker Ibrahim & Berg before relying on any general information stated herein. We are happy to discuss any questions you may have regarding legal issues related to ADA compliance.
 However, this trend may be due to the larger companies implementing accessibility programs (either after being sued or through the use of preventative measures).
 However, in a footnote the court did say that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”
 Please see “What Should Private Business Owners Do?” section below for further discussion on WCAG.
 The court held that while Domino’s website was not a place of public accommodation, a website that does not provide proper accessibility for disabled people “impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
 While courts have generally mandated compliance with WCAG 2.0 AA, many experts are suggesting that companies conform to WCAG 2.1 AA.
 Not that some accessibility advocates say these services can miss errors or inadvertently cause additional problems, such as by incorrectly describing an image.