UPDATE: This advisory has been updated to reflect the U.S. Supreme Court’s refusal to hear the appeal in Domino’s Pizza LLC v. Guillermo Robles, Case No. 18-1539

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disabilities and requires covered "places of public accommodation and commercial facilities to be designed, constructed, and altered" in compliance with certain accessibility standards.1 Although the ADA passed in 1991 when the worldwide web was in its infancy, whether or not websites are themselves "places of public accommodation" subject to the ADA has never been conclusively determined.

This issue has come under intense scrutiny that has resulted in conflicting rulings during the past several years.

In July 2010, the U.S. Department of Justice (DOJ) announced it would issue regulations concerning the accessibility of websites under Title III of the ADA. Since then, it has issued proposed rulemaking, but in December 2017 it withdrew the proposed regulations in their entirety.

The DOJ currently takes the general position that all privately owned websites offering services to the general public must comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, issued by the nonprofit World Wide Web Consortium, because they are either places of public accommodation themselves, or they are services of places of public accommodations.2 WCAG 2.0 Level AA standards have already been adopted in several countries worldwide and despite the lack of regulations are the standards that the DOJ currently enforces.

The number of cases and/or demands from plaintiffs alleging violations of the ADA due to website accessibility has risen exponentially in recent years, primarily due to the lack of actual regulations, varying court opinions across the country, and disability rights activism.

Compliance with ADA Website Standards

Businesses operating websites in California do have a number of defenses to claims of discrimination based on website inaccessibility. For example, freestanding websites—those not connected to brick and mortar locations—are arguably not subject to the requirements of the ADA in some parts of the country because the ADA only mandates accessibility for physical places of public accommodation.

The Ninth Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has interpreted the statutory term “place of public accommodation” to require "some connection between the good or service complained of and an actual physical place."3 But the opposite is true in other parts of the country.

The U.S. Supreme Court has never ruled on this issue. Also, to the extent that a website is a good, rather than a service, it may not need to be made accessible. Further, state laws governing websites impose differing standards on whether or not discriminatory intent is required to perfect a website accessibility claim, or whether discriminatory impact is sufficient, and also whether a website must be connected to an actual physical place for accessibility requirements to apply.

Thus, when facing a claim or demand concerning website accessibility, it is important to consult with legal counsel to determine the standards that apply and defenses that are available in any particular case. The DOJ takes the position that all websites offering services to the public must be accessible.

Plaintiffs continue to file lawsuits under the ADA and corollary state laws against businesses running websites that provide services to the public. In California, those lawsuits can be more expensive to resolve due to the provision of minimum statutory damages per "visit" or "deterred visit" under the Unruh Civil Rights Act and the California Disabled Persons Act ($4,000 and $1,000 respectively).

The Ninth Circuit held in a case filed against Domino’s Pizza that mobile phone applications and websites connected to physical locations in the United States are subject to the ADA’s accessibility requirements.4 Specifically at issue in that case was whether Domino’s Pizza could violate the ADA based on allegations that its website and mobile application lacked adequate written descriptions for their images, which prevented the plaintiff (who uses screen-reading software to access the Internet) from using the platforms to order food from the restaurant.

After this ruling, clarifying the law for the Ninth Circuit, a number of groups filed amicus briefs in support of Domino’s Pizza’s request to the U.S. Supreme Court to review the Ninth Circuit’s decision, seeking circuit-wide clarification on this issue.

On October 7, 2019, the Supreme Court refused to revisit the decision, solidifying this interpretation of the law in the Ninth Circuit, but leaving open its interpretation in other states.5 The result is that businesses are now left needing to comply with a number of different and developing interpretations of how the ADA might apply to online and mobile platforms nationwide.

Also, the California Supreme Court recently held in White v. Square, Inc., S249248 (Aug. 12, 2019), that consumers visiting an online business’s website intending to use its services have standing under the California Unruh Civil Rights Act to sue over policies that exclude them from those services, even if they do not enter into an agreement with the company or make a transaction. But White was not a disability access case.

In White, there was an express discriminatory policy against persons in a particular profession that evidenced discriminatory intent by the website owner. In disability website accessibility cases, a business’s non-compliance with WCAG 2.0 Level AA does not evidence discriminatory intent because there is no express policy against access by disabled individuals.

WCAG 2.0 Level AA Website Compliance Guidelines

Given the foregoing, and because of the steep increase in litigation and pre-litigation demands alleging violations of the ADA in connection with websites and other online portals, owners and operators of websites may wish to ensure compliance with at least WCAG 2.0 Level AA to avoid potential litigation exposure, and must remain up-to-date and comply with subsequent standards.

All websites, accessible or not, should have an easily findable accessible “Accessibility” page with information on how users can ask for help with access issues. This will provide disabled users with a way to obtain services if they cannot for any reason access the website, or if they are having any difficulties doing so. While this does not alone make a website compliant, it does open the door to use by disabled individuals.

Here are some of the basics for compliance with WCAG 2.0 Level AA:

Accommodations for those with auditory disabilities

  • For video with audio on the web, the standard accommodation is to caption the media. For audio-only files, a transcript is sufficient. This process is simple and can be performed by a number of captioning services for $2 to $3 per minute of content. The file with captions is simply attached to the audio or video file and can be selected by the user to display along with the video file. Note that “auto-captioning” like that available on You-Tube is currently not accurate enough to meet the WCAG 2.0 Level AA standards.

Accommodations for those with visual disabilities

  • Low vision: Low-vision individuals are covered under the WCAG 2.0 Level AA standards. The basic requirement with regard to such persons is to make it easier to read text. That means that the contrast between the background and the text should be sharp and that text should be enlargeable using standard tools. Basically, the content should be readable by someone with poor vision, so text that is low contrast, like dark on dark, is not compliant.
  • Accommodations for those with blindness: For those who are blind or nearly so, there are two basic issues for accessibility: navigability and readability. Navigability involves the ability to operate the website using the keyboard – primarily the tab and arrow keys – to access the content in an orderly fashion. This eliminates the need to hover a mouse around the keyboard to find content in a random fashion.
  • Readability involves being sure that text can be read by an individual’s screen-reader software, which means that text that is posted should be roughly the equivalent of searchable text in a word or pdf document. For pictures, pictures of text, scanned text, buttons with graphic text, and other non-text postings, all such items should be tagged with alt-text, which is similar to a hidden caption that screen readers can read to a blind individual.

Choosing a Web Designer

  • When deciding who to engage to create a website for your business, ensure that the web designer you choose is familiar with the WCAG 2.0 Level AA requirements and that the web designer will design the site in compliance with it.

Maintaining an Accessible Site

  • An accessible website remains accessible only if what is posted over time is accessible. It is important to implement training and procedures for posting to ensure that all of the individuals empowered to post on a website know how to make the content accessible or who to ask about it.
  • Once accessibility has been achieved, periodic self-audits of website content are a good way to make sure accessibility is maintained over time.

This document is intended as general information about the ADA and related laws and is not a substitute for legal advice specific concerning a particular situation. The interaction between the ADA and other related laws governing accessibility in different contexts (employment, communications, education, sales, and services) and by jurisdiction requires a complicated analysis involving individualized factual and legal considerations.

FOOTNOTES

1 28 C.F.R. § 36.101; see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
2 See https://www.w3.org/standards/.
3 42 U.S.C. § 12101(b) et seq.; Cullen v. Netflix, Inc., 600 Fed. Appx. 508, 509 (9th Cir. 2015); Earll v. eBay, Inc., 599 Fed. Appx. 695, 696 (9th Cir. 2015); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
4 Robles v. Domino’s Pizza, LLC, Case No. 17-555 (9th Cir. 2019).
5 Domino’s Pizza LLC v. Guillermo Robles, Case No. 18-1539, in the Supreme Court of the United States.