A New Year’s Resolution – Ensure Your Website Is ADA Compliant to Deter Costly Litigation

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By: Alisa N. Carr, Esq.

Do you know if your website is compliant with Title III of the Americans with Disabilities Act? The answer is probably “no” and the consequences for non-compliance include exposure to costly litigation that may control how and when you remediate your website, as well as the loss of sales to persons who cannot navigate your website.

Traditionally limited to barrier litigation for physical properties such as retail stores, shopping malls and restaurants (parking lots, counters and bathrooms), there has been an explosion of ADA website litigation in the last several years and confusion as to who needs to comply and how a public accommodation can make certain its website is compliant. While there is a dispute among federal courts as to whether the ADA applies to all websites of public accommodations or only those websites for businesses that also have brick and mortar locations, the following basics apply:

What Is Title III of the ADA?

The ADA was enacted in 1990 and prohibits discrimination by public accommodations on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).

Title III prohibits public accommodations from denying individuals with disabilities the opportunity to participate in or benefit from their goods, services, privileges or advantages or from affording individuals with disabilities an unequal opportunity to participate and benefit from the goods, services, privileges or advantages afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(i) and (ii); 28 C.F.R. §§ 36.202(a) and (b).

What Is a Public Accommodation?

A public accommodation is defined as a private entity whose operations affect commerce, and which falls within one of the 12 enumerated categories of 42 U.S.C. § 12181(7):

(7) Public accommodation. The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. 12181 (7)

Is a Website of a Public Accommodation Required to be in Compliance with the ADA?

The Department of Justice has consistently said yes.

The federal courts are divided. Some U.S. Courts of Appeal have asserted a narrow approach: Title III of the ADA only applies to physical structures. For a website to be designated a public accommodation, there must be a nexus between the website and a physical structure. But other federal courts, and some state courts, have held that a place of public accommodation does not need a physical structure. A place of public accommodation encompasses both physical and electronic spaces.

Practically, it makes little difference with respect to litigation. A plaintiff need only file suit in a jurisdiction that does not require a brick and mortar location.

Are There Technical Standards for an “ADA compliant” Website?

No. However, the Department of Justice and various federal and state courts have consistently held that websites of public accommodations need to comply with the WCAG 2.0 AA standards published by the World Wide Web Consortium (“W3”); an organization that develops standards for the World Wide Web.

The WCAG 2.0 AA success criteria are available here.

On June 5, 2018 the W3 updated the success criteria to WCAG 2.1, but the federal courts have not yet adopted these updated technical standards as the minimum threshold for an ADA compliant website.

Common Website Errors

  • CAPTCHA (inputting numbers/letters to prove you are a human not a robot)
  • Inaccessible Adobe flash content
  • Documents are not posted in an accessible format
  • Images missing descriptions (ALT/text)
  • Complex forms or data tables
  • Colors and font sizes
  • Navigation, links and plug-ins
  • Videos and other multi-media lack accessibility

Best Practices

  • Consult with professionals to understand your legal obligations and how to meet the WCAG 2.1 AA success criteria.
  • Create and post on your website a web accessibility plan – how can persons with disabilities gain full access to your website and/or contact your company to raise issues?
  • Hold third party vendors accountable for accessible design. If your company outsources code writing and design; ensure your contracts mandate WCAG 2.1 AA compliance.
  • Routinely monitor for accessibility particularly with respect to dynamic content.

Navigating the various ADA Title III regulations that apply to your organization can be confusing. If you have any questions regarding ADA website compliance, contact Alisa Carr and Leech Tishman’s ADA Title III Defense Group.

Alisa N. Carr is a Partner in Leech Tishman’s Litigation, Real Estate and Energy Practice Groups. She focuses her practice on litigation, with an emphasis on ADA Title III and FHA defense. Alisa is based in the Pittsburgh office and can be reached at 412.261.1600 or acarr@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, safety & toxic torts, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.