Website Accessibility: The Law and Your Business Priorities

To say that a website is “accessible” or “inaccessible” to people with disabilities means that the website, or certain aspects or components of the site, can or cannot be accessed by people with a certain disability or limitation. So, for example, if a website contains streaming video content with audio narration but no subtitles, we would say that the website, or more specifically the website's video content, is “inaccessible” to people who are deaf or hearing impaired.

Of course, defining “accessibility” that broadly — i.e., saying that there are as many kinds of accessibility as there are disabilities/limitations — is not very useful or concrete. Instead, let's focus on a particular aspect of accessibility, the type alleged in the vast majority of the demand letters and lawsuits out there: screen-reader accessibility. Screen readers are assistive software programs used by blind and visually impaired individuals, as well as people with other print disabilities like dyslexia, that convert the printed text on a computer screen into audible synthesized speech. The disabled individual uses this software, in conjunction with a bevy of keyboard commands, to navigate to the specific place on the screen he or she wants to read or interact with.

While many software applications, such as the Microsoft Office suite of products as well as some websites, are generally very compatible with screen readers, many other websites, because of how they are constructed, are partially or even entirely incompatible. If a screen-reader user goes to such an inaccessible website and attempts to navigate around it, the screen reader may only be able to deliver garbled speech information, or perhaps no information at all. Simply put, the disabled individual is completely unable to independently navigate around and interact with such a website.

One of the first questions people often ask when learning about the issue of website accessibility is, “How would a website developer know whether the site he or she is building is compatible with screen readers?” There are a few different sets of industry standards about website accessibility, but by far the most important standards are the Web Content Accessibility Guidelines (WCAG) version 2.0, published by the World Wide Web Consortium (W3C), an international standards organization based at MIT that promulgates standards about a variety of Internet-related subjects. The WCAG provide concrete, objective rules for web developers to follow to ensure all components of the site they are constructing are accessible to users with various categories of disabilities, but the vast majority of the WCAG standards deal with screen-reader accessibility.

The next question people often ask is, “Are we legally required to follow WCAG when building our website?” The short answer is that the WCAG are voluntary industry standards, not binding legal requirements. However, following the WCAG version 2.0 when building or redesigning your business's website, while not a “must,” is definitely a “should.” Doing so is not as difficult as you might think, and will not only lower your legal risk, but also provide your business with additional benefits.

What Does the Law Require?

Unfortunately, whether and to what extent the law requires businesses to make their websites accessible to people with disabilities is largely unclear. While there are several federal laws and a multitude of state laws that relate to website accessibility, the most important in this area is Title III of the ADA. Title III says that “[n]o individual shall be discriminated against 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.” Title III defines “place of public accommodation” by providing 12 categories of businesses and numerous examples, including hotels, restaurants, theaters, stadiums, grocery and retail stores, banks, museums, libraries, zoos, private schools, day care centers, and many others. In short, nearly all private businesses that sell goods or services to the general public are covered by Title III.

So where do websites fit into this picture? When the ADA was originally enacted in 1990, the World Wide Web did not exist in its current form, and Congress obviously intended Title III to apply only to physical buildings. During the first decade or so after it was enacted, judges and lawyers unquestioningly applied the ADA only in such brick-and-mortar contexts. However, as the Internet became an ever-more-present part of people's lives over the past two decades, a space where people not only seek information and cultivate relationships, but also conduct commercial transactions, the question has arisen — Does Title III require websites that offer goods and services over the Internet to be accessible to people with disabilities, just as it requires businesses that offer goods and services in physical spaces to be accessible?

The answer is unclear. Congress substantially amended the ADA in 2008, but chose not to say anything about whether websites were covered. The Department of Justice (DOJ), the federal agency with primary regulatory and enforcement authority over Title III, promised in 2010 to issue regulations explaining whether and how Title III applies to websites, but has continually delayed the issuance of these regulations year after year. Further adding to the confusion, the DOJ — even while refusing to issue Title III website regulations — has frequently taken the position in litigation that Title III applies to websites.

Judges have also taken widely varying approaches about whether Title III applies to websites. Many courts follow the so-called “nexus” approach, in which a website is covered only to the extent that it has a close relationship, or “nexus,” to a physical place that is clearly covered by Title III. Thus, for example, the website of a retail store might be covered if it has a close relationship with the store itself. A recent example of this approach is the case of Gomez v. Bang & Olufsen America, decided by the U.S. District Court for the Southern District of Florida in February 2017. The plaintiff, a legally blind screen-reader user, alleged that the defendant, an owner and operator of a chain of high-end audio and visual equipment stores, had violated Title III of the ADA because various aspects of the defendant's website were not accessible to him.

The defendant asked the court to dismiss the lawsuit, arguing that its website was not a “place of public accommodation” under Title III. After listing numerous contradicting court decisions about whether websites can be “places of public accommodation” under Title III, the court declined to definitively answer that broader question and instead found that when a website's inaccessibility impedes a plaintiff's “access to a specific, physical, concrete space,” and there is some nexus between the website and the physical place of public accommodation, a plaintiff's ADA claim can survive a motion to dismiss. In other words, if a defendant's website's inaccessibility impedes a plaintiff's access to any of that defendant's physical public accommodations, then a claim may survive a motion to dismiss. In this case, Gomez failed to demonstrate any particular impediment that impinged his access to B&O's goods and services at one of their brick and mortar locations. Accordingly, the Gomez court dismissed the case for failure to state a claim upon which relief could be granted.

Perhaps even more surprising and significant than Gomez was a trio of decisions handed down by a judge in the U.S. District Court for the Western District of Pennsylvania in April 2017. In Gniewkowski v. Lettuce Entertain You, Inc., Frazier v. Churchill Downs, and Frazier v. Ameriserv Financial Bank, several blind or visually impaired plaintiffs claimed that the defendants' websites were not accessible to them in violation of Title III.

The defendants, a federally chartered bank that provides both online and physical services, an operator of racetracks and casinos, and the country's leading online wagering business, filed motions to dismiss the plaintiffs' complaints, but U.S. District Court Judge Arthur J. Schwab, a George W. Bush appointee, denied the motions. While the defendants based their motions on several different legal arguments, their primary argument, founded on cases from the U.S. Court of Appeals for the Third Circuit, was that Title III of the ADA applies only to physical spaces.

However, the court surprisingly distinguished these decisions, noting that in neither of these Third Circuit cases did the defendant have ownership, possession, or exercise control over the location in question, as contrasted with the websites in the current cases. Thus, Judge Schwab held that Title III can apply to websites in certain circumstances and denied the motions to dismiss. The Gniewkowski decisions are significant not only because Judge Schwab has dozens of other ADA website cases on his docket, but also because his unexpected refusal to dismiss the cases may signal a trend toward more courts finding that Title III covers websites.

In short, Congress, the DOJ, and the courts have been all over the map about whether Title III of the ADA applies to websites. But the lack of clarity surrounding the issue has not stopped disabled plaintiffs from sending thousands of demand letters to, and filing hundreds of lawsuits against, businesses of all kinds across the country. In other words, despite the unsettled legal landscape, any business that offers goods or services to the public on its website and doesn't know whether the site is accessible to people with disabilities is at risk of being on the wrong end of a demand letter or a lawsuit.

Why Businesses Should Take Action

Despite the legal ambiguity, the risk of a demand letter or lawsuit is real. Your business should take action to proactively address website accessibility on your own timeline. If not, and you receive a demand letter or a lawsuit, you will be forced to remediate your site on a plaintiff's or a court's timetable, which will unquestionably be more rushed, expensive, stressful, and incomplete. Proactively addressing accessibility not only reduces legal risk, it expands your customer base by ensuring that your goods or services are available to all regardless of disability. Most importantly, it sends the message that your business is inclusive and cares not only about making a profit, but also about doing the right thing.

So, what should your business do first? A business that has received a demand letter or lawsuit, or even a business that is addressing accessibility proactively, should consult legal counsel to analyze its legal risks and determine what remedial actions it needs to take and when. It should then partner with a website accessibility consulting firm to assist its web designer in ensuring that the requirements of WCAG 2.0 are implemented to the maximum extent possible, at least for those high-traffic, customer-facing pages where goods or services are purchased. It should consider putting out an “accessibility statement” on its website, explaining what specific steps it takes to ensure that its site is accessible, which not only has branding and public relations benefits, but also may discourage litigation. Finally, businesses need to understand that accessibility is an ongoing process, not a one-time event, and take steps to ensure that accessibility is monitored on a periodic basis so that the site does not fall out of compliance when it is updated or modified.

*****
Matthias L. Niska is an attorney in the Labor and Employment practice group at Nilan Johnson Lewis in Minneapolis, MN. He routinely advises employers on their disability policies. Matthias can be reached at [email protected].

The first step to solving a problem is knowing it exists. But many businesses have never thought to ask whether their customer-facing websites are accessible to people with disabilities, and only become aware of the issue when they are sent a demand letter or served with a lawsuit alleging that their site violates the Americans with Disabilities Act (ADA). Although an ever-increasing number of such demand letters and lawsuits are cropping up each year, the issue of website accessibility remains entirely foreign to many, perhaps most, business owners.

While the law in this area is unsettled, the legal risk is clear. The reality is that taking steps to significantly reduce that risk is often straightforward and affordable, particularly when a business is already building or rebuilding its website.

What Does 'Accessibility' Mean?

To say that a website is “accessible” or “inaccessible” to people with disabilities means that the website, or certain aspects or components of the site, can or cannot be accessed by people with a certain disability or limitation. So, for example, if a website contains streaming video content with audio narration but no subtitles, we would say that the website, or more specifically the website's video content, is “inaccessible” to people who are deaf or hearing impaired.

Of course, defining “accessibility” that broadly — i.e., saying that there are as many kinds of accessibility as there are disabilities/limitations — is not very useful or concrete. Instead, let's focus on a particular aspect of accessibility, the type alleged in the vast majority of the demand letters and lawsuits out there: screen-reader accessibility. Screen readers are assistive software programs used by blind and visually impaired individuals, as well as people with other print disabilities like dyslexia, that convert the printed text on a computer screen into audible synthesized speech. The disabled individual uses this software, in conjunction with a bevy of keyboard commands, to navigate to the specific place on the screen he or she wants to read or interact with.

While many software applications, such as the Microsoft Office suite of products as well as some websites, are generally very compatible with screen readers, many other websites, because of how they are constructed, are partially or even entirely incompatible. If a screen-reader user goes to such an inaccessible website and attempts to navigate around it, the screen reader may only be able to deliver garbled speech information, or perhaps no information at all. Simply put, the disabled individual is completely unable to independently navigate around and interact with such a website.

One of the first questions people often ask when learning about the issue of website accessibility is, “How would a website developer know whether the site he or she is building is compatible with screen readers?” There are a few different sets of industry standards about website accessibility, but by far the most important standards are the Web Content Accessibility Guidelines (WCAG) version 2.0, published by the World Wide Web Consortium (W3C), an international standards organization based at MIT that promulgates standards about a variety of Internet-related subjects. The WCAG provide concrete, objective rules for web developers to follow to ensure all components of the site they are constructing are accessible to users with various categories of disabilities, but the vast majority of the WCAG standards deal with screen-reader accessibility.

The next question people often ask is, “Are we legally required to follow WCAG when building our website?” The short answer is that the WCAG are voluntary industry standards, not binding legal requirements. However, following the WCAG version 2.0 when building or redesigning your business's website, while not a “must,” is definitely a “should.” Doing so is not as difficult as you might think, and will not only lower your legal risk, but also provide your business with additional benefits.

What Does the Law Require?

Unfortunately, whether and to what extent the law requires businesses to make their websites accessible to people with disabilities is largely unclear. While there are several federal laws and a multitude of state laws that relate to website accessibility, the most important in this area is Title III of the ADA. Title III says that “[n]o individual shall be discriminated against 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.” Title III defines “place of public accommodation” by providing 12 categories of businesses and numerous examples, including hotels, restaurants, theaters, stadiums, grocery and retail stores, banks, museums, libraries, zoos, private schools, day care centers, and many others. In short, nearly all private businesses that sell goods or services to the general public are covered by Title III.

So where do websites fit into this picture? When the ADA was originally enacted in 1990, the World Wide Web did not exist in its current form, and Congress obviously intended Title III to apply only to physical buildings. During the first decade or so after it was enacted, judges and lawyers unquestioningly applied the ADA only in such brick-and-mortar contexts. However, as the Internet became an ever-more-present part of people's lives over the past two decades, a space where people not only seek information and cultivate relationships, but also conduct commercial transactions, the question has arisen — Does Title III require websites that offer goods and services over the Internet to be accessible to people with disabilities, just as it requires businesses that offer goods and services in physical spaces to be accessible?

The answer is unclear. Congress substantially amended the ADA in 2008, but chose not to say anything about whether websites were covered. The Department of Justice (DOJ), the federal agency with primary regulatory and enforcement authority over Title III, promised in 2010 to issue regulations explaining whether and how Title III applies to websites, but has continually delayed the issuance of these regulations year after year. Further adding to the confusion, the DOJ — even while refusing to issue Title III website regulations — has frequently taken the position in litigation that Title III applies to websites.

Judges have also taken widely varying approaches about whether Title III applies to websites. Many courts follow the so-called “nexus” approach, in which a website is covered only to the extent that it has a close relationship, or “nexus,” to a physical place that is clearly covered by Title III. Thus, for example, the website of a retail store might be covered if it has a close relationship with the store itself. A recent example of this approach is the case of Gomez v. Bang & Olufsen America, decided by the U.S. District Court for the Southern District of Florida in February 2017. The plaintiff, a legally blind screen-reader user, alleged that the defendant, an owner and operator of a chain of high-end audio and visual equipment stores, had violated Title III of the ADA because various aspects of the defendant's website were not accessible to him.

The defendant asked the court to dismiss the lawsuit, arguing that its website was not a “place of public accommodation” under Title III. After listing numerous contradicting court decisions about whether websites can be “places of public accommodation” under Title III, the court declined to definitively answer that broader question and instead found that when a website's inaccessibility impedes a plaintiff's “access to a specific, physical, concrete space,” and there is some nexus between the website and the physical place of public accommodation, a plaintiff's ADA claim can survive a motion to dismiss. In other words, if a defendant's website's inaccessibility impedes a plaintiff's access to any of that defendant's physical public accommodations, then a claim may survive a motion to dismiss. In this case, Gomez failed to demonstrate any particular impediment that impinged his access to B&O's goods and services at one of their brick and mortar locations. Accordingly, the Gomez court dismissed the case for failure to state a claim upon which relief could be granted.

Perhaps even more surprising and significant than Gomez was a trio of decisions handed down by a judge in the U.S. District Court for the Western District of Pennsylvania in April 2017. In Gniewkowski v. Lettuce Entertain You, Inc., Frazier v. Churchill Downs, and Frazier v. Ameriserv Financial Bank, several blind or visually impaired plaintiffs claimed that the defendants' websites were not accessible to them in violation of Title III.

The defendants, a federally chartered bank that provides both online and physical services, an operator of racetracks and casinos, and the country's leading online wagering business, filed motions to dismiss the plaintiffs' complaints, but U.S. District Court Judge Arthur J. Schwab, a George W. Bush appointee, denied the motions. While the defendants based their motions on several different legal arguments, their primary argument, founded on cases from the U.S. Court of Appeals for the Third Circuit, was that Title III of the ADA applies only to physical spaces.

However, the court surprisingly distinguished these decisions, noting that in neither of these Third Circuit cases did the defendant have ownership, possession, or exercise control over the location in question, as contrasted with the websites in the current cases. Thus, Judge Schwab held that Title III can apply to websites in certain circumstances and denied the motions to dismiss. The Gniewkowski decisions are significant not only because Judge Schwab has dozens of other ADA website cases on his docket, but also because his unexpected refusal to dismiss the cases may signal a trend toward more courts finding that Title III covers websites.

In short, Congress, the DOJ, and the courts have been all over the map about whether Title III of the ADA applies to websites. But the lack of clarity surrounding the issue has not stopped disabled plaintiffs from sending thousands of demand letters to, and filing hundreds of lawsuits against, businesses of all kinds across the country. In other words, despite the unsettled legal landscape, any business that offers goods or services to the public on its website and doesn't know whether the site is accessible to people with disabilities is at risk of being on the wrong end of a demand letter or a lawsuit.

Why Businesses Should Take Action

Despite the legal ambiguity, the risk of a demand letter or lawsuit is real. Your business should take action to proactively address website accessibility on your own timeline. If not, and you receive a demand letter or a lawsuit, you will be forced to remediate your site on a plaintiff's or a court's timetable, which will unquestionably be more rushed, expensive, stressful, and incomplete. Proactively addressing accessibility not only reduces legal risk, it expands your customer base by ensuring that your goods or services are available to all regardless of disability. Most importantly, it sends the message that your business is inclusive and cares not only about making a profit, but also about doing the right thing.

So, what should your business do first? A business that has received a demand letter or lawsuit, or even a business that is addressing accessibility proactively, should consult legal counsel to analyze its legal risks and determine what remedial actions it needs to take and when. It should then partner with a website accessibility consulting firm to assist its web designer in ensuring that the requirements of WCAG 2.0 are implemented to the maximum extent possible, at least for those high-traffic, customer-facing pages where goods or services are purchased. It should consider putting out an “accessibility statement” on its website, explaining what specific steps it takes to ensure that its site is accessible, which not only has branding and public relations benefits, but also may discourage litigation. Finally, businesses need to understand that accessibility is an ongoing process, not a one-time event, and take steps to ensure that accessibility is monitored on a periodic basis so that the site does not fall out of compliance when it is updated or modified.

*****
Matthias L. Niska is an attorney in the Labor and Employment practice group at Nilan Johnson Lewis in Minneapolis, MN. He routinely advises employers on their disability policies. Matthias can be reached at [email protected].