When President George W. Bush signed the Americans with Disabilities Act (ADA) in 1990, a new era of civil rights for people with disabilities was born. New buildings had to be accessible to people with disabilities and discrimination against people with disabilities was prohibited. And as of 2021, that also means websites must be ADA compliant.
But not all websites are bound by the ADA, only those considered a “place of public accommodation,” according to the US Department of Justice (DOJ).
Cannabis e-commerce sites fall into this category and retailers could face stiff penalties if found to be non-compliant.
What is a Public Accommodation Place?
On March 18, the DOJ issued updated website accessibility promulgations based on the ADA. ADA requirements apply to all goods, services, privileges, or other activities offered by public accommodations, including those offered on the web,” the DOJ said in the guidance.
According to Indianapolis attorney Brett J. Ashton, many courts across the United States did not wait for the DOJ to release its March 2022 guidelines to determine what constitutes public accommodation.
Some have ruled that an actual storefront is required for a business and its website to be defined as public hosting. Others continue to struggle with the connection between a company’s physical space and its website.
Meanwhile, the DOJ has released comments that appear to indicate its reluctance to shield commercial websites without a physical location from discrimination liability.
In other words, not having a physical location doesn’t mean a commercial website doesn’t need to be ADA compliant.
“If a company sells a product on its website, it’s public housing, so the ADA applies,” said attorney Jeff Lantz, CEO of Esquire Interactive, LLC, a social media and content creation.
An ADA primer
The ADA is a civil rights law prohibiting all forms of discrimination against people with disabilities. It is divided into five sections, called Titles. Each title prohibits discrimination against people with disabilities in different aspects of their lives. The titles and their areas of interest are:
Title I: Use
Title II: State and local government
Title III: Public housing and commercial facilities
Title IV: Telecommunications
Title V: Various provisions
Title III states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, benefits or accommodations of any public accommodation”.
In addition, the title prohibits anyone owning, renting or leasing public accommodation to a third party from discriminating against people with disabilities.
When the ADA was enacted, it did not clearly state guidelines for accessibility for people with disabilities. The DOJ released the 2010 ADA Standards for Accessible Design to correct this. The standards led to revisions to Titles II and III, which came into effect in 2012.
For further clarification, 181 companies asked the DOJ for guidelines outlining how to make websites accessible to the ADA in February 2022. The DOJ responded by issuing new guidelines on website accessibility on March 18, 2022.
Yet, Lantz laments, these enactments do not go far enough.
One thing that was made clear is that businesses must “follow all laws and regulations, including the ADA,” he said.
He lamented, however, “What it means to be ADA compliant is nebulous due to a recent case [law] results and vague guidelines from the DOJ.
How to know if your website is a “Go”
Fortunately, there are ways to analyze whether a commercial website is accessible to ADA.
A great starting point is the Web Accessibility Initiative. The initiative, supported by the World Wide Web Consortium (W3C), develops standards and materials designed to help people make websites more accessible.
It is also imperative to carefully read the Web Content Accessibility Guidelines (WCAG). These technical promulgations, published by the Web Accessibility Initiative, detail how to make websites ADA compliant. WCAGs relate to websites, phone applications, and other digital content.
The three levels of compliance for the ADA website are:
A: Minimum compliance
AA: Includes all Level A and Level AA requirements. Most companies aim for compliance at this level
AAA: Includes all Level A, AA and AA requirements and is the most stringent level of compliance. Few companies strive to meet this standard
Level A compliance generally does not offer wide accessibility while Level AA offers a mid-range level. The most notable Level AA requirements include:
1. Subtitles (for live audio and video)
2. Consistent navigation elements across the entire site
3. Color contrast, at least 4.5:1
4. The ability to push status updates through a screen reader
Several free websites diagnose website accessibility, usually for free. A quick web search will reveal many options.
Why ADA Compliance Matters
There are several reasons why a cannabis entity’s website should be ADA-compliant.
For starters, it’s the law.
Beyond that, an accessible website is “good consumer-focused policy. People eligible for medical marijuana will have underlying medical conditions.
“So even without the law, it’s best to modify a website to accommodate patients with a variety of medical and physical conditions,” Columbus attorney Chad Blackham said.
Blackham also noted that in our post-pandemic world, where remote working is a growing trend, adapting a website so that it can be used by anyone is “adapting to post-COVID life.”
According to David M. Benson, a Cleveland bankruptcy attorney, since cannabis is still federally illegal, a marijuana company racking up huge legal fees to defend a lawsuit on the ADA’s website is not authorized to file for bankruptcy.
“I can’t help you,” he said.
Cannabis entrepreneurs are particularly vulnerable to compliance complaints from the ADA’s website because they already face a convoluted web of state and federal enactments, Blackham said.
Ashton noted an increase in ADA website compliance cases filed over the past few years. “Three years ago, I might have told a client to ignore these letters (complaining about website compliance), but now we’re responding to the demand letter. In the last few months, more complaints have been filed.
“There is a great incentive for claimants to pursue these cases, and 99% settle,” Blackham added.
Most lawsuits alleging non-compliance with ADA website compliance laws seek less than $100,000 in damages to avoid the case going to federal court. Ashton also said he often advises insurance companies to settle rather than litigate because “the legal fees aren’t worth the money. Unless it’s in federal court and you’re suing a five billion dollar bank.
The plaintiffs “want a speedy recovery,” Ashton said.
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