The Americans with Disabilities Act (ADA) was signed into law in 1990. Title III of the ADA prohibits discrimination on the basis of disability in any place of public accommodation. Part of this requires that public accommodation places ensure that people with disabilities can access the goods and services offered by public accommodation. Public accommodation includes shops, restaurants, bars, theatres, 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 public lodging place was only envisioned as a physical space.
Access to goods and services has changed dramatically since 1990, when it was no longer possible to buy anything via the Internet. Now more than 13% of sales are made online. Additionally, customers regularly access information about companies 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 evaluating the DOJ’s interpretation, the courts have agreed that Title III of the ADA applies to websites. However, the courts have taken two different approaches to the extent of this 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 physical store that also sells goods online. However, the First Circuit, which covers Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island, ruled that Title III applies to all websites that offer goods or services, whether the site Web whether or not tied to a physical location.
On March 18, 2022, just 27 years after the first purchase was made on Amazon.com, the Department of Justice issued guidelines outlining what it considers to be businesses’ obligations regarding website accessibility under the ADA. The directive states that “[b]businesses…can currently choose how they will ensure that the programs, services and goods they provide online are accessible to people with disabilities. call centres, achieving equal access (including 24/7 access) could prove difficult in practice. More importantly, it could leave companies open to disputes over the accessibility of their websites, given the lack of clarity about what the DOJ considers to be adequate alternative accessibility to goods and services offered through the website.
Although the DOJ states that it “has always taken the position that the requirements of the ADA apply to all goods, services, privileges, or activities offered by public accommodations, including those offered on the Web”, it does not directly specify whether there should be a position that goods and services offered exclusively online without a link to a physical public establishment must be accessible under Title III. However, closer examination of the new guidelines suggests that the DOJ may in fact be taking the position that ADA Title III applies to online businesses only in practice. For example, under the “Title III case examples” of the guidelines, 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. . Although the DOJ has not publicly taken the position that online-only goods and services constitute public accommodations subject to Title III, the DOJ appears to have taken this same position in its enforcement actions.
Ensuring web accessibility
All of this leaves many companies uncertain about whether Title III applies to their websites. Fortunately, the guidelines set clear standards for what the DOJ considers a Title III-compliant website. At a high level, the DOJ pointed to some areas of the websites that it believed violated Title III:
- Poor color contrast, such as light gray writing on a dark gray background
- Use of color alone to convey information, such as red text only to display required fields
- Lack of text alternatives in the images to convey the meaning of the images objectives
- No captioning of audio on videos
- Text size that cannot be increased using a browser’s zoom function
- Forms inaccessible to people using screen readers, including no error indicators detectable by screen readers
- Mouse-only navigation (lack of ability to navigate a website using keys prevents some people with physical disabilities from navigating the website)
- Lack of a clear reporting function for accessibility issues
The DOJ has made it clear that the above is not a complete list of potential website accessibility issues. However, it does provide a clear guide to what the DOJ considers to be the most important areas of website accessibility, and companies with potential Title III coverage of their website should, at a minimum, ensure that their websites do not contain material listed by the DOJ as a violation of Title III.
The general areas of potential non-compliance do not provide companies with information on how specifically to ensure that their websites are considered accessible by the DOJ. However, the guidance identifies five different existing technical standards as “helpful guidance” to ensure accessibility. One of the pieces of guidance highlighted by the DOJ is the Web Content Accessibility Guidelines (WCAG), an international standard providing detailed guidance on a wide range of steps needed to ensure website accessibility. Although the DOJ identified the WCAGs as one of many useful pieces of guidance, each of the examples of Title III settlement agreements identified by the DOJ required compliance with the WCAGs, rather than one of the others. technical standards identified in the guidance. Accordingly, a business should use the standards set forth in the applicable WCAG to determine whether its website is Title III compliant.
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