Website Accessibility Continues to be a Concern

Date: 10/10/19
Title: Website Accessibility Continues to be a Concern

All businesses, schools and universities with consumer or student facing websites are at risk

Discrimination claims, under the Americans with Disabilities Act, alleging inaccessibility of business and school websites have soared in the past several years.  In 2018, over 1,500 such cases were filed in New York, Florida and Pennsylvania. Claims reach all businesses, including retail, food services, real estate, financial services, higher education and entertainment.

Accessibility Issues in Higher Education

Educational institutions are seeing the following types of claims relating to website accessibility from:

  • Visually impaired individuals who rely on screen-reader software such as JAWS or NVDA to interact with and access information on website and mobile applications; and
  • Individuals with auditory impairments alleging that video content posted on websites do not include closed captioning.  This is particularly challenging for educational institutions that post lectures, videos, webinars and other audio content on their websites. 

Many of these claims are filed under Title III of the ADA which states “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”  Title III requires the website to be considered a “place of public accommodation,” or otherwise considered a service, privilege, or benefit of such a public accommodation.  The ADA’s list of categories of covered public accommodation includes “places of education.”  Some jurisdictions have ruled that a website can constitute a place of public accommodation in and of itself.  Many states also have accessibility laws but since ADA’s statutory language does not address websites, courts and businesses have relied on the Web Content Accessibility Guidelines (WCAG) which has become the industry standard for website accessibility.

On the topic of whether all websites must comply with the ADA or only those with brick-and-mortar operations, the distinction is becoming more blurred due to certain influential courts who have applied the statute to web-based business operations even in the absence of clear connections to physical facilities, such as the case of Robles v. Domino’s Pizza.  (see previous compliance update)

Public Accommodation for Online Services

On October 7, 2019, the Supreme Court paved the way for sight impaired individuals to file suit against Domino’s Pizza and other retailers with websites that are not accessible.  [Domino’s Pizza LLC v. Robles] The justices of the high court turned down an appeal for Domino’s and let stand a ruling made by the Ninth Circuit Court of Appeals holding that the ADA protects access to websites and mobile apps along with physical restaurants and stores. 

Previously, the lower court dismissed the lawsuit, holding that even though Title III of the ADA applied to the internet, allowing the case to precede without clear web accessibility regulations from the Department of Justice (DOJ) would violate Domino’s due process rights.  In 2010 the DOJ released an Advance Notice of Proposed Rulemaking (ANPRM) announcing the consideration of web accessibility regulations; however, none were issued and the ANPRM was rescinded in 2017.

The plaintiff in this case, a sight impaired individual, complained that he was unable to order a pizza online because the website lacked the software that would allow him to communicate.  The courts ruled that the ADA applied to online services as well as brick and mortar stores.  

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.