It has come to the attention of this Firm that lawsuits commenced by trolls (unscrupulous attorneys) alleging ADA (Americans with Disabilities Act) violations as the result of web inaccessibility by their disabled clients have increased materially and substantially over the past ten years, clogging the court system based on a set of ill defined laws and case precedent. Lawsuits initiated by these trolls have forced national retailers such as Target, Scribd, Brooks Brothers, and Bag'n Baggage, to settle ADA claims rather than face extended court battles and negative public opinion.
Though such lawsuits remain problematic to the business community at large, your agency (whether traditional or digital) and your clients should sepnd some time and resources anticipating such lawsuits by examining the ADA, the Web Content Accessibility Guidelines 2.0 (WCAG), the U.S. Department of Justice's (DOJ) stance on ADA compliant guidelines and the results of current litigation.
This article will focus on the current state of the law on web accessibility for the disabled, and the DOJ's plans to enforce Title III of the ADA. Upon completion of the analysis, this Firm will make recommendations on website compliance for agencies and their clients that may prevent litigation brought by ADA trolls.
The ADA and Web Content Accessibility Guidelines 2.0
The ADA requires that "places of public accommodation" be accessible to the disabled. Public accommodations are generally businesses that are open to the public, covering a diverse variety of merchants offering services and products, such as retail stores, restaurants, hotels, theaters, doctor's offices, museums, libraries, private schools, and day care centers. The ADA enables disabled persons to sue these businesses alleging that they were denied full and equal access to the goods and services at a place of public accommodation. The DOJ can also bring suit for alleged ADA violations. There is a set of very specific, largely objective criteria for accessibility of physical locations.
The Internet does not provide businesses with a physical location; as a result, the law is unsettled on whether websites and mobile applications are places of public accommodation under the ADA. Some courts have held that they are, and others have taken the opposite view. The Third, Ninth, and Eleventh Circuit courts have applied the ADA only to websites that have a connection to goods and services available at a physical location. These courts have held that the store is a place of public accommodation, and "shopping there" online requires accessibility of the website. The First, Second, and Seventh Circuit courts have taken a broader view of online business and apply the ADA to include all websites that offer direct sale of goods or services, even those that lack "some connection to physical space." Since ecommerce businesses can be sued anywhere they are regularly transacting business, ADA trolls and legitimate litigants alike can select their forum based on which has the most favorable law, and as the Internet provides practically all businesses a national (and worldwide) forum to sell products and services, businesses that take advantage of ecommerce would be subject to suits in all 50 states.
Should a retailer assume that its website is a place of public accommodation, the standard for what is accessible under the ADA remains unsettled. No current single set of federal laws or regulations define nationwide requirements that would make a website ADA compliant. W3C, an international consortium that develops Internet standards, has promulgated voluntary guidelines known as the Web Content Accessibility Guidelines 2.0, which contains three degrees of accessibility: A, AA, and AAA. Currently the DOJ is considering adoption of Level AA Success Criteria as its standard for website accessibility for entities covered by the ADA. Specifics of the WCAG's standards may be found on its website, https://www.w3.org/WAI/intro/wcag.php though agencies and their clients may find the quick reference guide located at https://www.w3.org/WAI/WCAG20/quickref/ to be more helpful in understanding the proposed guidelines.
Department of Justice
In 2010, Congress authorized the DOJ to issue regulations interpreting Titles II (Public Entities and Transportation) and III (Public Accommodations). From that moment, the DOJ has consistently emphasized (without any statutory or regulatory basis) that websites and mobile applications be brought into compliance with WCAG, Level AA guidelines. Businesses eagerly awaited the anticipated clarity of specific guidelines to assess their risk profiles related to their websites. But in April of 2016, the DOJ announced that it would neither adopt the WCAG Guidelines nor finalize some other set of regulations defining the elements of accessible website content until fiscal year 2018 at the earliest. As a result, private businesses remain at the mercy of conflicting judicial decisions, uncertain as how to spend time and money to ensure ADA compliance. Though the DOJ has not adopted the WCAG at this time, the DOJ has telegraphed its intention that it considers a website "accessible" if it complies with the WCAG Level AA standards through issuing declaratory statements in investigations, settlements and consent decrees, and court filings (statements of interest in private proceedings). As a result, this Firm recommends that agencies and their clients proactively spend some time and effort to make their websites reasonably compliant with WCAG Level AA standards. Should the DOJ change its stance and move quickly to adopt the WCAG, compliance could effectively block ADA trolls from prosecuting claims in the judicial system.
It is interesting to note that without the implementation of the WCAG, the DOJ's delay has encouraged trolls to pursue litigation, effectively through settlements and court decisions establishing that the WCAG governs all websites, despite the DOJ explicitly stating that it will issue such standards at a later date. For agencies and their clients, the failure of the DOJ to enact specific guidelines for ADA compliance forces this Firm to consider current case law regarding ADA compliance for websites.
Recent Private Lawsuits Based on Title III of the ADA
Current litigation on the issue of website compliance with Title III of the ADA has resulted in conflicting judicial decisions adding to the current uncertainty of the state of the law on this issue. Absent the adoption of the WCAG by the DOJ, businesses will not find certainty on this issue until either the Supreme Court of the United States (SCOTUS) or Congress resolves the disputed case law.
In 2006, the National Federation of the Blind (NFB) sued national retailer Target (National Federation for the Blind v. Target Corp. F.Supp.2d, 2006 WL 2578282 (N.D. Cal. Sept. 6, 2006), alleging that the Target.com website was inaccessible to the blind and inaccessible with software used by the blind in violation of Title II of the ADA. The US District Court for the Northern District of California ("District Court") determined that Target's website was a place of "public accommodation" that must comply with the federal law on disabilities. In its decision, the District Court noted that a "place of public accommodation" must be a physical place. However, the District Court agreed with the plaintiffs that this precedent was not controlling because Target's website existed as a "service, privilege or advantage" of Target's physical retail stores. The District Court stated that the website served to enhance the services of the brick and mortar retailer rather than as a replacement for the physical storefront. Moreover, the District Court concluded that Target failed to employ well recognized and readily achievable coding on its website that would enable blind consumers to access the site (For example, "Alt" tags provide invisible descriptive text for images and provide screenreaders with the material they need to describe a graphically-rich page). Interestingly enough, the District Court denied the plaintiff's motion for a preliminary injunction under Title III of the ADA because not all of the Target products and services that were available online were offered in the brick and mortar stores. Ultimately, Target settled the case in 2008, creating a $6 million fund for settlement claims and agreeing to modify its website to become ADA compliant. The impact of the Target decision has resulted in more questions than answers about ecommerce business practices, especially those businesses that don't offer a physical retail store; however, the decision did provide a limited basis for ADA trolls to pursue litigation based on alleged ADA violations.
Almost ten years after the Target ruling, a blind customer filed a suit in the County of San Bernardino Superior Court ("Superior Court") against Colorado Bag & Baggage (B&B), a Colorado based company, citing "numerous access barriers" that prevented him from using the B&B website. Attorneys for the plaintiff offered examples of the accessibility barriers such as missing alternative text for images, empty links and missing form labels. B&B has no brick and mortar retail storefront. On March 21, 2016, a California judge granted summary judgment in favor of the plaintiff, awarding plaintiff $4,000, attorneys fees and ordering B&B to make its website ADA compliant or to terminate the website. In its decision, the Superior Court stated, "Plaintiff also has presented sufficient evidence and legal argument to conclude Title III of the ADA applies to the plaintiff's use of a website where plaintiff has demonstrated he sought goods and services from a place of public accommodation because he demonstrated a sufficient nexus exists between defendant's retail store and its website that directly affects plaintiff's ability to access goods and services. Plaintiff also presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant because of his disability." B&B does not appear to have challenged the decision in a higher court and has subsequently taken down its website. It is not clear whether other courts will use the B&B decision as precedent for future disputes or how much weight future courts will give to this decision, especially considering that the Superior Court's decision was not appealed to and decided by a higher court.
Another recent decision favoring application of disabled consumers' rights to access websites can be found in the federal district court in Vermont, ruling that a company selling its products exclusively through a website (with no physical store of any kind) is a place of public accommodation as defined by the ADA and, as such, must provide access for visually impaired computer users. In the case of National Fed. of the Blind v. Scribd, Inc., No. 14-CV-162 (D. Vt. March 19, 2015), Scribd, a retailer that operates an online digital bookstore through which users can download digital and audiobooks upon payment of a monthly fee, had argued that the digital and audiobooks themselves would be accessible to sight-impaired readers once downloaded. But, once again, the NFB argued that those same readers would be unable to shop on the Scribd website because it only provides a visual and no nonvisual means of operation. The Vermont District Court concluded that Scribd's website fell within the ADA's public accommodations definition as either a "place of exhibition and entertainment," a "sales or rental establishment," a "library," or a "place of public display or collection." The decision of the Vermont District Court appears to have firmly extended the reach of the ADA to retailers that do not possess brick and mortar storefronts, but not all courts of law have adopted the Vermont District Court's views on ecommerce.
Although case law to this point has decidedly favored extension of Title III of the ADA to etailers, in a 2015 case, Earll v. eBay, the U.S. Court of Appeals for the Ninth Circuit (9th Circuit) held that eBay.com, a website not connected to any physical place, is not a "place of public accommodation" under the accessibility requirements of Title III of the ADA. The basis of the suit was an individual with a hearing impairment who sued eBay Inc. and alleging that an eBay voice-based verification process prevented her from registering as a seller, in violation of the ADA. This same court reached a similar conclusion on the same day in Cullen v. Netflix, a case concerning closed-captioning for online video content. The 9th Circuit cited an earlier decision, in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000), that Title III of the ADA applies only to businesses that have a connection to a physical place where they offer their goods and services. The 9th Circuit's decision shows that judges are far from unanimous in believing that the ADA can be used as a tool to regulate ecommerce.
These examples of conflicting judicial decisions exposes the ongoing split in the lower federal courts with regard to the issue of ADA compliance and fails to ease the uncertainty that businesses face when making a decision to spend resources to make their websites ADA compliant. And as long as empty seats remain unfilled in the Supreme Court, a deadlocked SCOTUS could leave the laws and conflicting lower court decisions unsettled for an extended period of time, though the Republicans will likely fill the seat as they control the executive and legislative branches of government.
With no set ADA guidelines, the state of the law on the issue of website compliance for the disabled is mixed at best and conflicting at worst. This Firm understands and sympathizes with agencies and their clients that remain subject to this evolving area of the law. Though this Firm does not recommend that agencies and their clients waste time and money to comply with regulations that have not been implemented by Congress or the DOJ, this Firm believes that if agencies or their clients are in the process of creating, modifying, updating or otherwise making changes to their websites, such businesses should make modifications with an eye to ensuring that the websites meet the WCAG Level AA guidelines; namely that the websites are perceivable, operable, understandable and robust. The following list provides a summary of major guidelines that would reasonably ensure compliance with Title III of the ADA. An ADA compliant website should contain the following elements:
• Provides text alternatives for any non-text content; • Provides options for time-based media; • Includes content that can be presented and accessed in different ways without losing information or structure; • Is easy to see and hear, including separating foreground from background; • Permits all functionality from a keyboard if needed; • Permits adequate time to read and use content; • Is not designed in a way that is known to cause seizures; • Includes ways to help users navigate the site and detect content; • Includes text content that is clear and understandable; • Operates and is presented in predictable ways; • Helps users avoid and correct mistakes; and • Is compatible with current and future user agents, including assistive web technologies.
Many, but not all of these elements have been adopted and used by individual states that have enacted website accessibility laws, further muddling the legal landscape.
At the local level, on March 14, 2016, New York City became the first major municipality in the United States to adopt legislation mandating accessibility standards for all of its government agency websites. Under the new law, the City was forced to establish a website protocol that incorporated: (1) Section 508 of the Rehabilitation Act ("Section 508"); (2) WCAG Level AA; or (3) any "successor" standards. The Section 508 standard applies to federal government websites and consists of requirements that are less rigorous than those set forth by the WCAG. However last year, the federal government's Advisory Board proposed a rule that would, among other things, adopt WCAG as the new website standard under Section 508. Thus, as New York City incorporates Section 508 in its website protocol, its agency websites may be subject to the WCAG once the final Section 508 regulations are issued.
The adoption of accessibility standards for government websites in New York City is significant. Other municipalities could follow New York City's lead and pass their own legislation or regulations for accessible features in government websites. Such actions may result in differing local standards across jurisdictions, which would undermine DOJ's stated intent to implement a comprehensive, national set of rules for website accessibility under the ADA. Again, the DOJ's continued delay will have the effect of encouraging states and local governments to enact rules of their own, subjecting businesses to potentially inconsistent rules across jurisdictions, a completely inefficient result for nationwide commerce.
Regardless of actions undertaken at the local or state levels, the DOJ appears poised to adopt, slowly but surely, WCAG guidelines that would apply Title III of the ADA equally to all private online retailers (regardless of whether the business possesses a brick and mortar store). That makes the DOJ's potential reach astounding, with enormous financial implications. Many websites remain noncompliant with WCAG guidelines, and the ADA remains muddled about compliance requirements. As a result, many thousands of websites may be forced to incur substantial expenses to comply with future ADA guidelines. In the interim, litigation against websites that aren't in compliance with WCAG guidelines will likely continue in force and effect. That is why this Firm recommends that agencies and their clients take measured steps to ensure reasonable compliance with WCAG guidelines.