When was the last time your company’s website underwent a compliance review? Is your website compliant with the Americans with Disabilities Act (“ADA”)? Did you know that your website may be considered a public accommodation under the ADA? These are all questions you should be asking yourself when it comes to your company website.
Employer websites may be considered public accommodations for public-facing businesses under Title III of the Americans with Disabilities Act (“ADA”). Though the ADA does not explicitly mention websites or mobile applications, it states that places of public accommodation must provide equal access to people with disabilities, must not discriminate against people with disabilities, and must freely provide necessary auxiliary aids and services to people with disabilities. The ADA defines “auxiliary aids and services” as including “accessible electronic and information technology,” and federal circuits appear to be split about the extent to which this definition covers businesses’ websites.
Websites are likely considered places of public accommodation in the geographic areas falling within the federal First, Second, and Seventh Circuits. The First Circuit Court of Appeals concluded it would be illogical to allow a website to refuse to sell something to a person with disabilities as compared to a physical business site. The Seventh Circuit Court of Appeals has noted that the ADA’s Committee Report implied the ADA was concerned with anything analogous to the physical access that those with disabilities have. For example, the Court pointed out that “travel service” was included in the list of services the ADA considered to constitute a public accommodation. Federal district courts within the Second Circuit have come to the same conclusion based on similar reasoning, and extrapolation from a related Second Circuit opinion discussing public accommodations.
The Ninth Circuit Court of Appeals took a different approach and held that a website must have a sufficient “nexus” to a brick-and-mortar location that is subject to the ADA to fall into the realm of public accommodation under the ADA. Notably, the U.S. Supreme Court declined to review this case. The Third Circuit and the Sixth Circuit also effectively used this nexus rule in analogous cases, holding that a business’ goods and services had to be tied to the business’ physical locations for the plaintiffs to prevail in their public accommodation claims. While these cases did not discuss the nexus rule as it pertains to websites, one can infer that courts in these jurisdictions would apply the test similarly in the website context.
Only the Eleventh Circuit Court of Appeals has held that websites are not public accommodations under the ADA, and that opinion was later vacated as moot. Notably, in its initial opinion—despite its ultimate holding—the Court stated that the Ninth Circuit’s nexus approach lacked a statutory basis and declined to apply it.
In March 2022, the U.S. Department of Justice released guidance describing how businesses should ensure that their websites are accessible to people with disabilities under the ADA. The guidance provides examples of ways that websites may not comply with the ADA. For instance, poor color contrast or use of too much color may inhibit legibility for those with limited vision or color blindness. Blind people may not be able to understand the content and purpose of an image or chart where no text alternative is provided to convey its purpose. Similarly, videos without captions may insufficiently communicate to those with hearing disabilities. Online forms without labels, clear instructions, and error messages may inhibit people with disabilities from accurately filling out and submitting forms. Some individuals with disabilities may not be able to navigate with a mouse and require the option to navigate a website using only their keyboard. The guidance also provides businesses with more resources like the Web Content Accessibility Guidelines (WCAG) and the Accessibility Fundamentals Overview.
Based on these authorities and guidelines, many websites are likely now subject to the ADA’s accessibility requirements. Because of the law’s changing landscape in this area and the remote nature of website use, it is important that public-facing businesses consult with counsel about how to make their websites accessible to people with disabilities to ensure compliance with current law.
Reach out to your Lathrop GPM attorney to learn more about proactive steps you can be taking to make sure your company website complies with the ADA’s accessibility requirements.
Rosalee McNamara represents businesses and organizations in employment and litigation matters throughout the United States. She has successfully defended – from charge to jury verdict – a wide array of employment ...
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