ADA questions remain over web accessibility cases and the lack of DOJ regulations

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Karla Gilbride kept getting lost while trying to navigate unlabeled buttons and unorganized graphics when searching online for someone to handle her wedding registry and invitations.

Gilbride, who is blind and uses a screen reader, refuses to make even one-time purchases from companies with unnavigable websites. She can’t walk into a store and see products on the shelves, but she can scroll down a page and learn about them if a website is accessible.

“It is something I deal with every day in my life, trying to purchase things online and do my job and get around the internet,” says Gilbride, a staff attorney at Public Justice, a nonprofit legal advocacy organization in Washington, D.C. “I encounter frustrations daily with roadblocks to using the internet, which could be such a gateway to leveling the playing field.”

Disability rights advocates say web accessibility—the practice of designing and coding websites so that people with disabilities can use them—can be accomplished through simple changes, such as changing color contrast and adding video captions.

However, the legal landscape surrounding web accessibility has become more complex.

The Americans with Disabilities Act, signed into law in 1990, requires in Title III that businesses serving as “places of public accommodation” remove barriers to access for people with disabilities.

Under the ADA, places of public accommodation include restaurants, theaters, retail stores and more. The law does not explicitly address the internet or mobile applications, leaving courts around the country to decide how the law applies to commercial websites.

Despite calls for clarity, the Department of Justice, the federal agency responsible for enforcing the ADA, has not provided regulations on the scope of the law in terms of web accessibility.

Related lawsuits have also increased dramatically, with the vast majority filed by a small number of law firms representing a small number of plaintiffs, says Kristina Launey, managing partner of Seyfarth Shaw’s Sacramento, California, office and a member of its ADA Title III Specialty Team.

“We are in a state of no regulation,” Launey says. “No regulations are going to happen anytime soon, and the number of lawsuits year after year has been increasing exponentially, partially as a result of that.”

According to Seyfarth’s ADA Title III News & Insights blog, which tracks web accessibility cases using data from Courthouse News Services, at least 2,258 federal lawsuits were filed in 2018. This is an increase of 177% over 2017, when 814 were filed. Comparatively, only 262 web accessibility lawsuits were filed in federal courts in 2016, and 57 were filed in 2015, the blog also found.

A HISTORY OF SPLIT DECISIONS

Web accessibility was the primary focus of National Federation of the Blind v. Target Corp. in 2016, when the organization sued the retail chain over its website in Northern California. The NFB alleged that Target violated the ADA and California state laws by discriminating against people who were blind and visually impaired in places of public accommodation.

A federal judge ruled that the lawsuit could proceed, holding that the aspects of Target’s online services that were sufficiently integrated with those of its physical stores were covered by the ADA’s nondiscrimination provisions. The case was later settled.

In 2011, National Association of the Deaf v. Netflix Inc., which was filed in federal court in Massachusetts, alleged that the video streaming service violated the ADA by failing to provide closed captioning on most of its “Watch Instantly” programming.

Despite Netflix’s arguments that the ADA applied only to physical places, the judge ruled that the law also covers website-only businesses and allowed the case to proceed.

NAD CEO Howard Rosenblum, who is deaf, says Netflix settled with NAD and agreed to 100% captioning of its video content. NAD then negotiated for 100% captioning on all major video streaming services and reached an agreement with Gogo to caption in-flight movies.

“Prior to our Netflix case, most service providers did not perceive web accessibility as a necessity or legally required,” Rosenblum says.

While some courts have agreed with the rationale in the Netflix case, others found that websites are subject to the ADA only if there is a close nexus between the website and a physical location.

In 2012, a federal court in California held in lawsuits against Netflix and eBay that places of public accommodation must be physical spaces. As a result, the 9th U.S. Circuit Court of Appeals in San Francisco affirmed in two unpublished opinions in 2015 that Netflix’s streaming service and eBay’s web-based business were not subject to the ADA.

A federal court in Florida ruled in the first actual trial over web accessibility in 2017 that the website of supermarket chain Winn-Dixie is a place of public accommodation, since it is “heavily integrated” with physical stores and operates as a “gateway” to those stores.

The court ordered Winn-Dixie to comply with the Web Content Accessibility Guidelines 2.0, a set of guidelines for improving web accessibility that were published by the World Wide Web Consortium in 2008.

The 11th U.S. Circuit Court of Appeals in Atlanta heard the appeal in Juan Carlos Gil v. Winn-Dixie Stores Inc. in October and has not yet issued an opinion.

Gilbride says the Winn-Dixie trial is significant because most decisions involving web accessibility have been on motions to dismiss or summary judgment, including those in the earlier Target and Netflix cases.

In addition to the nexus issue, she says a question that keeps coming up in briefs is “whether businesses need to comply with federal and state law in the absence of regulations from the DOJ, or whether they should wait for the DOJ to give guidance.”

The 9th Circuit answered that question in January in Guillermo Robles v. Domino’s Pizza, rejecting the restaurant chain’s argument that courts should wait for DOJ regulations before they decide cases. The appellate court held that the ADA applies to the company’s website and mobile app, since the law “applies to the services of a place of public accommodation, not services in a place of public accommodation.”

In a footnote, the 9th Circuit said it was not deciding whether the ADA covers websites or apps where the inaccessibility does not prevent access to the physical location’s goods and services.

Domino’s is likely to file a petition for writ of certiorari with the Supreme Court, but had not done so before press deadline.

ASKING FOR GUIDANCE

The DOJ announced plans to propose web accessibility regulations in 2010 but withdrew those plans in December 2017.

“That was consistent with what President [Donald] Trump’s administration was doing with regulations across the board,” says Launey, who defends companies in web accessibility cases at Seyfarth Shaw.

Members of the House of Representatives and Senate sent letters to then-Attorney General Jeff Sessions to encourage the DOJ to address uncertainty in the ADA and the ongoing flood of lawsuits.

The DOJ responded to Rep. Ted Budd, R-N.C., in September, contending that it interpreted the ADA to apply to public accommodations’ websites more than 20 years ago.

“This interpretation is consistent with the ADA’s Title III requirement that the goods, services, privileges or activities provided by places of public accommodation be equally accessible to people with disabilities,” the DOJ said.

The DOJ also stated that in absence of specific web-accessibility regulations, public accommodations can be flexible in how they comply with the ADA’s general nondiscrimination and effective communication requirements.

Lainey Feingold, a disability rights lawyer in Berkeley, California, who has worked on web accessibility cases since 2000, says that means the DOJ never doubted that the ADA applies to websites.

“The ADA, since the beginning, has had language that if you are covered by the ADA, you have to effectively communicate with the public, your members, your patients,” she says. “The only way to effectively communicate information on a website or mobile application is to have that website or mobile app be accessible.”

The ABA House of Delegates weighed in at the 2018 annual meeting, urging courts and government entities to interpret the ADA as applying to technology, goods and services delivered via technology, regardless of whether the entity solely exists virtually or has a nexus to a physical location.

Despite the lack of specific regulations, Launey says her clients are making their websites more accessible in light of the DOJ response and the Domino’s decision.

She adds that many of them delayed making expensive changes in case the DOJ issued a standard other than the WCAG 2.0 AA—which is the standard experts say affords maximum accessibility but is still attainable. WCAG 2.1 AAwas published in June 2018 and includes the same requirements.

Feingold calls the unresolved questions around web accessibility distractions, saying that companies have the tools to make their websites accessible.

“It is not complex as to how to develop an accessibility program,” Feingold says. “As with everything worth doing, it does take expertise and commitment.”