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    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.”

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    Section 508 Comes to the Forefront

    February 2023 was a big month for Section 508 of the Rehabilitation Act. After congressional hearings and a damning report from Senator Casey’s office, on February 21, 2023, the U.S. Department of Justice (DOJ) released its long-awaited report on Section 508 compliance by federal agencies. Meanwhile, on February 17, 2023, the U.S. Court of Appeals for the D.C. Circuit held that federal employees can sue to enforce Section 508 when the technology they need to use for their jobs is inaccessible. The DOJ report indicates that there is a great deal of work to do, but the D.C. Circuit decision provides a pathway for getting the work done.

    Section 508 of the Rehabilitation Act requires federal agencies to ensure all the information and communication technology they purchase, develop, maintain or use is accessible to people with disabilities in compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. The DOJ is required to report on progress across federal agencies to comply with Section 508 every two years. However, the last such report issued by the DOJ was in 2012.

    The DOJ report just issued shows that agencies are largely not complying with their obligations – even though the report is based primarily on self-reported data not independently verified, it is clear that federal technology remains inaccessible, even decades after Section 508 was passed.

    The data on the accessibility of internet and intranet sites and downloadable documents is illustrative. The reviewed agencies conducted primarily automated testing of various of their websites and found that, of a total of 22 million internet pages, 1 in 10 were not conformant with the WCAG standards. One problem with this data is that it is not statistically significant – there is no data regarding what percentage of total federal web pages were tested. In addition, some agencies (16%) tested 50 or fewer pages of their websites, undermining the validity of the sample. Another problem is that automated testing only reflects a small portion of the standards (25-30%). In addition, importantly, removing one agency’s test results from the dataset lowers the conformance level to 70% – 3 in 10 websites being inaccessible. Thus, it is clear that this average is not reflective of actual agency performance – a few agencies are doing well and others are abysmal.

    The data are even worse for employee-facing (“intranet”) websites. Only 41% of the intranet pages tested were conformant. And 12.5% of agencies did not test their intranet pages at all.

    Finally, document downloads from federal websites were shockingly inaccessible. The vast majority of the top 10 agency downloads are PDF documents and the majority of those – over 2/3 – were inaccessible. Most of those were untagged PDFs, meaning they have no markup information at all, making them completely inaccessible.

    All this is the result of a lack of attention paid to Section 508 compliance – in terms of resources and measurement of outcomes. The data in the report shows that many agencies far overestimate the maturity and resources of their Section 508 programs. 7 agencies reported that their Section 508 programs met the highest standard of maturity – “Measured.” 12 reported the second-highest level – “Resourced.” 14 reported their programs were at the “Planned” level. And only 1 reported that its program was “Ad Hoc.” Yet 20 of the 34 agencies reported a lack of sufficient data for decision making. And all but 6 agencies reported that they had less than 50 staff assigned to their program, with 14 reporting fewer than 25 and 10 not reporting at all. 2 reported having only 1 FTE. With so little staff, it seems unlikely a program could qualify as “Resourced” or “Measured,” or even “Planned.”

    But all is not lost. Some courts had held that federal employees could not sue to challenge violations of Section 508 by their federal employers. Instead, those courts had said employees could only pursue remedies under Section 501, which allows reasonable accommodations, without fixing the inaccessible technology at the heart of the violation. On February 17, the D.C. Circuit, in Orozco v. Garland, made clear that this is not the case and that federal employees may enforce their right to accessible technology under Section 508. Without such a “private right of action” federal employees had to rely on human readers or interpreters for inaccessible technology and videos even though accessible technology could be independently usable by employees with disabilities.

    Mr. Orozco is an intelligence analyst for the FBI. He is blind and uses screen reader software which converts visual screen information into synthesized speech or braille. He filed a complaint with the agency that much of the FBI software he needed to use for his job was not properly coded to be accessible by a screen reader. The agency treated his complaint as an employment discrimination complaint under Section 501 instead of a technology complaint under Section 508 and dismissed the complaint because the agency was providing reasonable accommodations. He filed suit under Section 508 and the district court dismissed, ruling that, because Section 508 adopted the enforcement rights and remedies of Section 504 applicable to federal providers of funding assistance, agencies could only be sued in their capacity as funding assistance providers. Because the FBI was Mr. Orozco’s employer and was not acting as a funding provider, the court found there was no private right of action for employees to sue their federal agency employers under Section 508.

    The D.C. Circuit reversed, noting that the district court’s analysis would mean no one would be able to sue a federal agency under Section 508 for its inaccessible technology. The Court held that Section 508 incorporated Section 504’s procedures, but not the limitations on who could sue because Section 508 provided its own definition of who could sue (any “person aggrieved”). Reading it as the district court had would leave no one capable of enforcing Section 508 and “[r]eading a statute expressing authorizing ‘civil actions’ to authorize no civil actions would be to render that provision a nullity.”

    Both of February’s Section 508 developments provide some hope that Section 508 implementation may finally move forward through a combination of transparency, shame, and legal action.

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    Eve Hill

    Senior Legal Advisor

    Eve Hill is Tech for All’s Senior Legal Advisor. In this role, she provides assessments, recommendations, model policies and procedures, and training on a variety of topics related to disability rights and civil rights. 

    Eve Hill has decades of experience helping businesses, government agencies, employers, and nonprofits understand and implement disability rights law, as a federal government official, as the Director of District of Columbia Office of Disability Rights, at the Burton Blatt Institute, and in academia and private practice. She also has experience helping entities go beyond compliance to include disability as part of their diversity, equity and inclusion efforts.  Eve’s experience regarding technology accessibility includes: 

    • Assessing entities’ policies and processes regarding digital technology accessibility for external customers and for employees;
    • Assisting large and small companies and universities to build processes and policies to ensure their websites and other digital technologies become accessible and remain accessible over time; 
    • Offering training on disability implicit bias, disability rights law, and U.S. and international digital accessibility law;
    • Advising companies and nonprofits on accessibility policies, employment policies, event policies, procurement policies, and diversity policies;
    • Educating businesses, educational institutions, and state government agencies on the impact of changes and proposed changes to federal and international disability laws and regulations, including the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Accessible Canada Act and the Accessibility for Ontarians with Disabilities Act; and
    • Advising the federal government about policies and practices to improve accessibility of digital technologies.

    Eve’s impatience with unfairness has led her to fight for environmental, animal, and civil rights since childhood. She found her calling almost 30 years ago when she joined the disability civil rights movement.

    Eve holds a B.A, magna cum laude, in English from Sweet Briar College and earned her law degree cum laude from Cornell Law School.

    Seeking compliance? You’re in good company

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