by Craig Thorstenson
Executive Summary: Despite the recent explosion of lawsuits challenging the accessibility of websites under Title III of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) has announced that it will not publish proposed revisions to the Title III regulations to address website accessibility until 2018.
However, businesses should not view this as a reprieve or anticipate a slowdown in litigation. In fact, the DOJ continues to conduct investigations of website accessibility under both Title III and Title II (applicable to public entities, such as public universities). Additionally, plaintiffs’ lawyers have filed class actions against a variety of businesses including on-line entertainment providers, retailers, providers of e-books, financial institutions, credit reporting agencies, public universities, and even the NBA and NCAA, alleging violations of Title III based on inaccessible websites. The DOJ has intervened in many of these lawsuits.
There are several unresolved issues regarding a company’s legal obligation to make its website accessible, including whether Title III applies to the company (especially if it operates only on-line and has no “brick and mortar” presence), whether Title III applies to websites in general, and the applicable standards for determining whether a website is reasonably accessible. Although the DOJ has not adopted the Web Content Accessibility Guidelines (WCAG) promulgated by the World Wide Web Consortium (W3C) (discussed below), it appears to be taking the position that companies must comply with these guidelines to make their websites reasonably accessible. Most settlement agreements with the DOJ require companies to comply with the WCAG, and many impose additional requirements. Similarly, settlements of class action lawsuits often include revision of on-line content to comply with the WCAG and agreements to monitor third-party software and/or obtain assurances from providers of third-party software that the software complies with the WCAG.
What is Title III?
Title III of the ADA prohibits public accommodations from discriminating against an individual on the basis of disability. The ADA lists several categories of businesses that are considered public accommodations, including various types of retail and professional services, hotels and motels, and transportation, education, entertainment and exhibition facilities. It does not, however, list websites as places of public accommodation. Those who own, lease or operate a place of public accommodation must ensure those with disabilities are able to participate “in the full and equal enjoyment” of the goods and services offered by the public accommodation.
The DOJ enforces Title III, and issued regulations in 1991 implementing the law’s requirements. The DOJ revised these regulations in 2010 and also issued an Advance Notice of Proposed Rulemaking (ANPRM) on accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. In the ANPRM the DOJ stated that it was considering revising the Title III regulations to “establish requirements” for making websites accessible to individuals with disabilities. Subsequently the DOJ announced that it will be publishing two separate Notices of Proposed Rulemaking (NPRMs) regarding website accessibility one for Title II and one for Title III.
Although most businesses anticipated that the DOJ would publish its proposed Title III regulations in 2016, it has announced that it plans to publish the Title II NPRM in early fiscal year 2016, and anticipates publishing a Title III rule during fiscal year 2018. The DOJ stated that it believes the Title II website accessibility rule will “facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM.”
DOJ Intervention in Law Suits
Despite the delay in publishing a proposed rule on website accessibility, the DOJ has intervened in several private lawsuits challenging the accessibility of websites. For example, the DOJ filed Statements of Interest in lawsuits filed against Harvard and MIT, claiming the schools have failed to make the content of their thousands of free online video and audio files accessible to individuals with hearing disabilities. In its filing, the DOJ takes the position that the schools are currently obligated to provide effective communications to disabled individuals, including the use of closed captioning where appropriate. Referencing the ANPRM, the DOJ stated that the ADA’s “broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on Web sites over the Internet.”
The World Wide Web Consortium (W3C), an international community that develops open standards to ensure the long-term growth of the web, published the WCAG, which is a technical standard that has 12 guidelines organized under four principles:
PerceivableGenerally making it easier for users to see and hear content, which may include providing text or captions, as well as the creation of content that can be presented in different ways, including by assistive technology, without losing meaning.
OperableIncluding making all functionality available from a keyboard, as well as providing enough time to read and use content, avoiding content that causes seizures, and helping users navigate and find content.
UnderstandableIncluding making text readable and understandable, ensuring content appears and operates in predictable ways, and helping users avoid and correct mistakes.
RobustThis involves maximizing compatibility with current and future user tools.
For each guideline, there are testable success criteria that are assigned to one of three levels of conformance (A, AA, or AAA). The W3C does not recommend that Level AAA conformance be required as a general policy for entire sites because it is not possible to satisfy all Level AAA success criteria for some content. The WCAG and interpreting documents are available at: http://www.w3.org/TR/WCAG20/.
While lawsuits challenging the accessibility of websites continue to proliferate, there are a number of issues that have yet to be conclusively resolved including:
? Whether a website is a place of public accommodation. Some courts have held that websites are not places of public accommodation because they are not physical places. For example, in Jancik v. Redbox Automated Retail, LLC, (C.D. Cal. May 14, 2014), the court concluded that a website was not a place of public accommodation because it was not a physical place, and there was an insufficient nexus between the website and physical kiosks. Others courts have concluded that Title III does apply to a company’s website. See, e.g., Nat’l Ass’n of the Deaf v. Netflix, Inc., (D. Mass. June 19, 2012) (concluding that the ADA applies to Netflix’s streaming video library). In the ANPRM, the DOJ expressed its opinion that the ADA covers the websites of “private entities that meet the definition of ‘public accommodations.'”
? What is an “accessible website”? The DOJ’s delay in issuing a Title III NPRM means that businesses must continue to attempt to navigate the complex and confusing area of website accessibility with no clearly stated binding legal standards to guide them or even a legally binding definition of what is an “accessible” website.
In the ANPRM the DOJ raised a number of questions regarding what standards should be adopted, including whether it is appropriate or feasible to require businesses to comply with conformance level AA of the WCAG.
The Bottom Line
Businesses should be aware of the increasing number of lawsuits challenging the accessibility of public websites. Even though the DOJ has not officially adopted the WCAG, most of its settlement agreements require companies to revise their websites to comply with the guidelines. As litigation over this issue continues to increase and courts grapple with how to define a reasonably accessible website, some courts likely will take notice of the DOJ’s position and may adopt the WCAG as the standard for reasonableness. It is a good idea for companies to take steps now to evaluate the accessibility of their websites and determine whether changes are needed to decrease the likelihood of being subjected to a lawsuit or DOJ investigation.