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Is your website covered by the Americans with Disabilities Act? The short answer is: possibly. This area of the law continues to evolve, with differences from jurisdiction to jurisdiction based on the type of website. But make no mistake: lawsuits alleging lack of website accessibility are hot. Here are the basics of what you need to know to assess whether your website is covered and, if so, what you should do about it.

Title III of the ADA prohibits places of public accommodation from discriminating on the basis of disability. It was enacted in 1991, well before the internet became an engine of commerce. Its regulations do not address websites, mobile apps or similar technology. In 2010, the Department of Justice (DOJ) announced that it intended to promulgate specific requirements for website accessibility under Title III, but no regulation was ever finalized. Under the Obama Administration, the DOJ advocated to expand Title III to expressly apply to websites. For instance, in 2014, the DOJ submitted a Statement of Interest in New v. Lucky Brand, arguing that public accommodations must provide equipment (in that case point of sale devices) that could be independently used by visually impaired customers. But in July 2017, the DOJ under the Trump Administration filed an amicus brief asserting a contrary position: that public accommodations could comply with Title III simply by providing employee assistance to use vending machines rather than having to provide equipment that would make the machines independently accessible to disabled customers. In December 2017, the DOJ officially withdrew its 2010 proposed rulemaking, stating that the DOJ is "evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate."

A Typical Website Accessibility Lawsuit

The most common allegation is that the company website is inaccessible to visually-impaired customers (some cases now involve mobile apps). Such customers often rely on screen-reader software like JAWS or NVDA to interact with and access a site's content. If the website is not compatible with this or similar screen-reader technology, most visually-impaired customers will not be able to use the website.

Companies seeking to navigate these issues should start by addressing two basic questions: (1) Does your website engage in commercial activity for the benefit of the general public; and if so (2) Will the law treat your website as a public accommodation, or as the service of a public accommodation?

Websites That Engage in Commercial Activity

The first step is to review your company websites for commercial activity. Title III of the ADA applies to 12 specified categories of "places of public accommodation." The examples given for each category are all brick-and-mortar locations, reflecting the fact that the ADA was enacted before the widespread commercial use of the internet. "Sales" and "service" establishments are the two categories most likely to apply to websites.

At present, a company website that is purely informational or educational in nature is likely beyond Title III's accessibility requirements. But a website that sells goods or services directly to the public may be regarded either as a sales or service establishment in its own right, or as a service of such an establishment, and thus covered by the ADA or comparable state laws. Even a website that does not actually sell any goods or services but engages in some form of commercial activity may still be subject to the ADA or a comparable state law if it facilitates sales. The law has yet to define the limits of such commercial activity, but courts have ruled that a company website cannot deny disabled customers the full and equal enjoyment of services like online coupons, member savings and loyalty programs, store locators, and the ability to order items online for pick up at a physical location. Other commercial activity, such as advertising, online sweepstakes, or links to third-party sales websites may also increase the risk that a website must comply with the ADA.

The State of the Law Governing Website Accessibility

Once you have determined your website engages in sufficient commercial activity, you should find out if any courts in your jurisdiction have weighed in on website accessibility issues. The Ninth Circuit is the only federal appellate court to expressly address whether websites are subject to Title III accessibility obligations. But several district courts in different jurisdictions have ruled on the issue, and in so doing have reached conflicting results. Some have ruled that a website must comply with the ADA only if it has a "nexus" to the goods or services sold out of a physical location, such as a brick-and-mortar store. A growing number have ruled that any website, even if it is an online-only business, may be subject to the ADA. Other jurisdictions have yet to address website accessibility specifically, but have required a nexus to a physical location in other ADA contexts that may prove relevant to the legal analysis.

In August 2017, Judge Weinstein of the Eastern District of New York denied retailer Blick Art Materials' motion to dismiss a website accessibility lawsuit under the ADA and parallel state law. The court found that Blick's website was subject to the ADA, even for the goods and services that it sold independently of any physical retail location. The judge rejected Blick's arguments that the court should wait for DOJ guidance on a technical website accessibility standard, and that it would violate Blick's due process rights to require its website to comply with the ADA without any administrative standards or regulations.

This opinion follows a series of website accessibility rulings for plaintiffs in 2017, including rulings against a group of Five Guys franchisees in the Southern District of New York, against Hobby Lobby and later Dave & Busters's in the Central District of California, and against Winn-Dixie in the Southern District of Florida, which ended with the first website accessibility trial verdict. But in Florida, defendant Bang & Olufsen obtained a dismissal because the plaintiff failed to establish a nexus between the company website and its physical locations. In California, a judge dismissed a website accessibility suit against Dominoes, finding that the company had met its ADA obligations by providing a 24-hour toll-free phoneline to assist visually-impaired customers. The judge further ruled that to require website accessibility without meaningful administrative guidance would violate Dominoes' due process rights. Yet three months later, another judge in the same federal district ruled otherwise in the Hobby Lobby decision. Similarly, in the October 2017 Dave & Buster case, the court recognized that providing a disability assistance telephone number may be an alternative means to comply with the ADA, but refused to dismiss the lawsuit, in part because it was unclear if the ADA notice and phone number itself were accessible (i.e., could be read via screen-reader software).

Bringing Your Company Website into Compliance with the ADA

What should you do if you determine that your company website may be subject to the ADA? Different situations may call for a different response. Consider the ways that you might make your website more accessible to consumers with disabilities. For some businesses, in some industries, this may mean complying with some or all of the Web Content Accessibility Guidelines (WCAG) 2.0. These guidelines are published by the World Wide Web Consortium (W3C) and are widely accepted as an industry standard for website accessibility, although no law yet requires private businesses to comply with them. There also appears to be an increasing expectation that your website should be compatible with screen reader technology such as JAWS or NVDA. This may require the services of an accessibility consultant who can make the necessary modifications to your website's source code.

There are shorter-term steps that may minimize your risk of liability. You may be able to implement a temporary workaround, like a 24-hour hotline or remote assistance for consumers with disabilities. You might make your website's services, such as coupons or membership savings or loyalty programs, available via alternative means. This may require you to train key staff to be able to address disability-related questions and requests. Perhaps your company can set up a committee tasked with implementing these accessibility modifications, and involve individuals with disabilities in the process. The idea is to show your company's commitment to solving accessibility issues in the interim while your website developer or consultant makes the necessary modifications. Experienced counsel, working in conjunction with the right accessibility expert, can guide you toward efficient, effective solutions that will maximize your business opportunities while minimizing your risk of legal liability.