The Americans with Disabilities Act (ADA) was signed into law in 1990. Title III of the ADA prohibits discrimination based upon disability in any place of public accommodation. This, in part, requires that places of public accommodation ensure that individuals with disabilities are able to access the goods and services offered by the public accommodation. A place of public accommodation includes stores, restaurants, bars, theaters, hotels, recreational facilities, private museums and schools, doctors' and dentists' offices, shopping malls, and other businesses open to the public. At the time of the ADA's passage, a place of public accommodation was contemplated only as a physical space.
Accessing goods and services has changed dramatically since 1990, when it was not possible to purchase anything through the internet. Now, more than 13% of sales are made online. In addition, customers routinely access information about businesses with physical locations online. Although the world wide web did not exist when the ADA was enacted, the Department of Justice (DOJ) has long maintained that the ADA applies to websites. In assessing the DOJ's interpretation, courts have agreed that Title III of the ADA applies to websites. However, courts have taken two different approaches to the breadth of that application. The majority of courts take the approach that the ADA applies to websites only when that website relates to a physical location—such as a brick-and-mortar store that also sells goods online. However, the First Circuit, which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island, has held that Title III applies to all websites that offer goods or services, regardless of whether the website is related to a physical location.
On March 18, 2022, only 27 years after the first purchase was made on Amazon.com, the Department of Justice issued guidance describing what it believes to be businesses' obligations regarding website accessibility under the ADA. The guidance indicates that "[b]usinesses … can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities." While this seemingly leaves open the possibility that businesses can provide accessibility through means other than their website, such as through phone centers, achieving equal access (including 24/7 access) could prove difficult in practice. More importantly, it would potentially leave businesses open to litigation over whether their websites are accessible, given the lack of clarity on what the DOJ believes to be adequate alternative accessibility to the goods and services offered through the website.
While the DOJ states that it "has consistently taken the position that the ADA's requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web," it does not directly address whether it takes the position that goods and services offered exclusively online without a tie to a physical public accommodation must be accessible under Title III. However, a closer look at the new guidance suggests that the DOJ may actually take the position that Title III of the ADA applies to online-only businesses in practice. For example, under the guidance's "Title III Sample Cases," the DOJ includes Settlement Agreements with an online-only grocery delivery service and an online tutoring service that does not operate its own physical space. While the DOJ failed to publicly take the position that the online-only goods and services constitute public accommodations subject to Title III, the DOJ appears to have taken that very position in its enforcement actions.
Ensuring Web Accessibility
All of this leaves many businesses uncertain as to whether Title III applies to their websites. Fortunately, the guidance does set out clear standards on what the DOJ believes constitutes a website compliant with Title III. At a high level, the DOJ emphasized certain areas of websites that it believed constituted a violation of Title III:
- Poor color contrast, such as light gray writing on a dark grey background
- Use of color alone to convey information, such as red text only to show required fields
- Lack of text alternatives in images to convey the meaning of purposes of the images
- No captioning of audio on videos
- Text size that cannot be increased using a browser's zoom function
- Forms that are inaccessible to individuals using screen readers, including the absence of error indicators detectable to screen readers
- Mouse-only navigation (the absence of the ability to navigate a website by keystrokes prevents some individuals with physical disabilities from navigating the website)
- The absence of a clear reporting function for accessibility issues
The DOJ made clear that the above was not a comprehensive list of potential website accessibility issues. However, it does provide a clear guide to what the DOJ considers the most significant areas of website accessibility, and businesses with potential Title III coverage of their website should, at a minimum, ensure that their websites do not contain elements listed by the DOJ as a violation of Title III.
The broad areas of potential non-compliance do not provide businesses with information on the specifics of how to ensure that their websites are viewed as accessible by the DOJ. However, the guidance points to five different existing technical standards as "helpful guidance" in ensuring accessibility. One piece of guidance pointed to by the DOJ is the Web Content Accessibility Guidelines (WCAG), an international standard providing the detailed guidance on a broad range of steps necessary to ensure website accessibility. While the DOJ pointed to WCAG as one of many pieces of helpful guidance, every one of the Title III sample settlement agreements identified by the DOJ required compliance with WCAG—rather than one of the other technical standards identified in the guidance. Accordingly, a business should use the standards set forth in the current WCAG for determining whether its website complies with Title III.
If your organization has any questions about ADA compliance and website accessibility, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.