Since its inception thirty years ago, the Americans with Disabilities Act (ADA) has served to protect individuals with disabilities. The original scope of Title III of the ADA prohibited discrimination on the basis of disability in places of public accommodation, such as restaurants, hotels, retail stores, museums and libraries. Today, the scope and reach of the ADA has expanded due to the exponential increase in the use and prominence of the Internet. In response, courts and the Department of Justice (DOJ) have extended the application of the ADA to the Internet, and more specifically, to business websites. While the law is relatively unsettled and developing in this area, the message is clear: businesses must take steps to ensure that their websites are accessible by people with disabilities or risk defending a lawsuit under the ADA. For example, a website should be accessible to a visually impaired person through its compatibility with a site reader, which reads website content and plays it through the user’s speakers.
What Businesses Are Affected?
Virtually every business that has a website could theoretically fall under the purview of the ADA. Businesses that operate websites offering goods and services that also operate brick and mortar locations are unquestionably considered places of public accommodation and therefore covered by the ADA. However, the courts are split over whether business websites that exclusively offer goods or services online are covered by the ADA. The Second Circuit (which includes the State of Connecticut) has held that a business does not require a brick and mortar location to be considered a place of public accommodation. Under this theory, any business offering goods or services through its website may be subject to the ADA.
What Actions Can Be Taken?
Businesses should assess whether their website is in compliance with the ADA. To do so, businesses should: (1) address compliance requirements with their web designer (provided the website was not designed in-house); (2) download software to assess the accessibility of their website; and (3) consult the Web Content Accessibility Guidelines (WCAG) which have been recognized by the DOJ. If a business is in the process of redesigning its website, the business should confirm that the new website is ADA compliant. In addition, businesses should ensure that their insurance policies (typically EPLI policies) provide coverage for ADA website claims.
What’s Next?
Secondary sources indicate that courts are trending towards a more expansive view of the ADA, which may no longer distinguish between online and brick and mortar retailers. Consistent with this trend, ADA website claims are increasing. Accordingly, businesses should be proactive to ensure that their websites comply with the ADA to mitigate the risk of facing a claim. For more information, please contact Daniel B. Fitzgerald (dfitzgerald@brodywilk.com) or another BW attorney.