Online Retailers Beware: ADA Expansion to Require Enhanced Web Accessibility for Disabled

As companies continue to expand their online presence, the number of suits brought against retailers for non-compliance with the ADA has grown, especially litigation related to the websites of large retail chains, many of whose websites allegedly do not allow hearing- or sight-impaired individuals easy access to the services provided by retail websites. Trade associations have filed similar claims as they continue to petition for non-discriminatory treatment for those with disabilities, with the ultimate goal of retail websites that cater to the needs of the disabled by providing features such as closed captioning for the deaf or screen reader-compatible content for the blind.

July 26, 2015 marked the 25th anniversary of the ADA, and while the law has gone through some changes during that time, nothing may compare with the expansion of the definition of “places of public accommodation” planned as part of final rulemaking that the US Department of Justice (DOJ) has slated for publication in April 2016. Specifically, the DOJ has made a recommendation that a company’s website be included in the definition of a “public accommodation.”

Title III of the ADA requires places of “public accommodation” to ensure non-discriminatory accessibility to those individuals with disabilities. A location may be considered a public accommodation when its operation affects commerce. As of today, the statute lists lodging establishments, restaurants, movie theaters, and retail establishments, along with a number of other locations, as public accommodations. Title III of the ADA was enacted in 1990, just as the first commercial internet service providers were emerging, and it did not contemplate the inclusion of online public accommodations. Instead, the original language of the ADA and its implementing regulations only considered physical places of public accommodation.

The proposed rulemaking would seek to cover websites under the same rules that currently apply to physical locations. It would clarify the question that many attorneys are receiving from clients today: Does our website need to comply with Title III of the ADA? Some guidance was received from the DOJ in 2010, when the DOJ issued the Advance Notice of Proposed Rulemaking. This Notice formalized the DOJ’s position that a website is within the scope of Title III so long as it provides goods and services and falls within one of the twelve categories of public accommodations listed in the ADA, a portion of which is listed above.

Since 2010, there have been several recent lawsuits over website accessibility. Notably, in April of 2015, edX Inc., a provider of online classes, reached a settlement with the DOJ over the alleged inaccessibility of its website. The agreement required edX to make its website fully accessible within 18 months of the date the settlement was reached. This means that edX was required to ensure that its website had “accurate captioning for the deaf, oral navigation signals for the blind, and programming changes so those with dexterity disabilities can navigate content without struggling with a hand-operated mouse.” The National Association for the Deaf brought a similar suit against Harvard and MIT, alleging that the two universities violated the ADA by improperly captioning their online course offerings. Both universities utilized edX’s services, along with platforms such as YouTube, iTunes U, and SoundCloud, but the complaints claim that much of the provided online content is “inaccurately or unintelligibly captioned, making it inaccessible for individuals who are deaf or hard of hearing.”

The DOJ pulled the accessibility standards included in the proposed rulemaking from the Web Content and Accessibility Guidelines put out by the World Wide Web Consortium. The standards lay out 12 measures for addressing Web accessibility and rate website conformity to these measures at three conformance levels: A, AA, or AAA.

• Level A is the minimum level of conformance for access, which allows for basic Web accessibility with little challenge to Web content developers.
• Level AA provides intermediate access, which is more comprehensive but still a feasible solution for content developers.
• Level AAA provides maximum access but contains criteria that are less feasible for content developers.

The DOJ has asked the industry for input on what level of conformity should be required for websites that are places of public accommodation under the new definition. The DOJ also acknowledges the fast pace of technological advancement and requests input from stakeholders regarding what types of distinct website features would render compliance difficult or impossible. In fact, the DOJ indicates in the proposed rulemaking that Level AAA conformance is most likely impractical.

Given the explosion of social media and real-time interaction with consumers ever since the publication of the proposed rules, it will be interesting to see how the DOJ tries to keep pace with technological advancements and whether incremental implementation, which is suggested in the proposed rules, allows the DOJ to start to take the necessary steps to provide resources for individuals with disabilities. Regardless, with so many retailers looking to expand their online presence, or new retailers building business based entirely on a web-based interface with consumers, the final rule may have major implications and require drastic changes to existing commercial websites.