ADA Coverage: Does Place Matter? What is Effective?

Title III of the Americans with Disabilities Act (ADA) covers “places of public accommodation.” Public accommodations are 12 broad categories of businesses that are open to the public. Clearly, online-only stores and service providers are public accommodations. But are they “places?” And if a public accommodation has a website, is its website required to be accessible? What does accessibility of a website mean under the ADA?

First, let’s consider whether the online presence of a public accommodation is covered under the ADA. The Department of Justice has issued guidance stating that websites of businesses are covered by Title III of the ADA as long as they fall within one of the 12 categories of public accommodations. In other words, a “place” need not be a physical location. The Department has also consistently taken the position that all the goods, services, and information provided by a public accommodation are covered by the ADA, including those provided through the internet.

But the Department has not yet issued formal regulations making that position a part of the applicable law. So courts owe the Department’s informal guidance only a limited amount of deference and the courts may take different approaches to the question.

So far, the only federal courts of appeals to specifically address the ADA’s application to websites are the Ninth Circuit and the Eleventh Circuit. The Ninth Circuit has confirmed that it will find a website to be subject to the ADA only if the site has a nexus to a physical place of public accommodation. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). In the Eleventh Circuit, Rendon v. ValleyCrest Prods., Inc., 294 F.3d 1279 (11th Cir. 2002), a non-website case, had indicated that the Circuit might also follow the nexus approach. In Gil v. Winn-Dixie Stores, Inc., the district court found that Winn-Dixie’s website was required to be accessible because it had a close connection to Winn-Dixie’s physical stores. A panel of the Eleventh Circuit Court of Appeals reversed and held that a website would only be covered if the website’s inaccessibility actually hampered access to the physical store. However, when the plaintiff petitioned for rehearing by the full Court, the full Court found that the appeal was moot and vacated the panel’s decision. As a result, there is no precedent on the specific issue of website coverage from the Eleventh Circuit.

The other courts of appeal have not addressed the issue specifically in the context of websites. But some circuits have given us clues – mostly in cases involving insurance policies – as to what they might find if presented with the question. These clues indicate that

The 3rd Circuit may agree with the 9th Circuit and only find websites to be covered to the extent they have a nexus with a physical location.
The 1st, 2nd, 7th, and DC Circuits may find that web-only businesses, regardless of any nexus to a physical location, are covered by the ADA.
The 4th, 5th, 6th, 8th, and 10th Circuits are unclear.

So far no Circuits have indicated that the websites of public accommodations are not covered by the ADA. But litigation over the issue will likely continue until the Justice Department issues regulations, the Websites and Software Applications Accessibility Act is passed (Duckworth/Sarbanes), or the Supreme Court issues a definitive ruling.

The Justice Department does plan to issue regulations on website accessibility, beginning with Title II of the ADA, in the Spring of 2023.

In the meantime, there is really no excuse not to make business websites accessible. Any website with a nexus to a physical place is certainly covered by the ADA, at least in the Ninth Circuit – and websites are not limited to particular circuits or states, so there is no way around compliance. For online-only businesses, there is also likely no escape from ADA coverage, since four circuits appear ready to say those websites are also covered.

So what does the ADA require from a website? The basic requirement is “effective communication” with people with disabilities, 28 C.F.R. § 36.303(c), which public accommodations must achieve by providing auxiliary aids and services, such as accessible websites. Effective communication is not a technical standard, but a practical one. A common definition is “allowing individuals with disabilities to access or acquire the same information, engage in the same interactions, and enjoy the same products and services that the website offers its nondisabled customers with substantially equivalent ease of use.”

The Justice Department and other agencies have all found that the Web Content Accessibility Guidelines (WCAG) 2.0 (and 2.1) Level A and AA meet the requirement of effective communication and have required WCAG 2.0 or 2.1 compliance in numerous settlement agreements. Therefore, complying with WCAG 2.0 or 2.1 Level AA is a sure way to comply with the ADA. However, that standard is not required by the ADA. A business is free to apply another standard, as long as it results in the website providing effective communication equivalent to what is offered to nondisabled people.

A number of questions have not yet been answered and await resolution by Department of Justice regulations and courts, including:

Is there a percentage compliance with WCAG that means the website is accessible enough? It is doubtful that any particular percentage could be guaranteed to meet the effective communication standard because what matters is not the number of accessibility barriers, but their significance. For example, a website might be able to meet the ADA standard if its barriers were purely for decorative or noncommunicative elements of the website. On the other hand, one accessibility barrier would be sufficient to mean the website did not comply if that barrier blocked users with disabilities from using a function of the website, such as the “purchase” function.
Can a business provide an alternative means of accessing the information on the website, such as a staffed telephone line? This question has not been answered definitively by the courts, but one thing that is clear is that any alternative method would have to be equally convenient and provide full access to the website. Therefore, a telephone line with limited hours, with long wait times, or which only read abridged version of the website would certainly not provide effective communication. Thus, as the court in Robles v. Domino’s Pizza, LLC, found, “Defendant contends that its phone line is an acceptable accessibility substitute for its webpage and App. This is not true; it is undisputed that Plaintiff waited over forty-five minutes before hanging up on at least two occasions. No person who has ever waited on hold with customer service – or ever been hungry for a pizza – would find this to be an acceptable substitute for ordering from a website.
When will making a website accessible be considered an undue burden? The evidence indicates that making a website accessible from the beginning adds little or nothing to the cost, but retrofitting an existing website to make it accessible can be somewhat costly. There is no black-and-white rule establishing when a cost will be considered an undue burden. It will depend on all the resources available to the covered entity. A court may also compare the cost to other website expenses, as the district court did in the Winn-Dixie case, where it found “whether the cost to modify the website is $250,000 or $37,000 is of no moment. Though that higher cost seems high, it pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.”
Will a business be responsible for third-party content on its website? It is not clear whether, or to what extent a business will be responsible for third-party content on its website. On the one hand, content the business does not use or have any control over, such as third-party advertising on the website, seem less likely to be the responsibility of the website owner. On the other hand, third-party widgets the business’ website uses to make its own site usable, such as a third-party shopping cart, should be the responsibility of the website owner. As the Winn-Dixie district court found, “the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.”