In 1990, Congress passed the Americans with Disabilities Act (“ADA or Act”). The purpose of the Act is to provide protection and certain rights for Americans with disabilities. One of Congress’ goals was to ensure that people with disabilities are able to fully participate in all aspects of society.
Title III of the Act provides that “no 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.” There are several ways a person with a disability can be discriminated against with respect to places of public accommodation including no access, limited access due to barriers, or restrictions that impair an individual’s right to enjoy “major life activities” that others enjoy. A place of public accommodation is a privately operated facility whose operations affect commerce, or has one of the twelve enumerated categories that are considered to a place of public accommodation.
Businesses that operate a place of public accommodation (such as retail establishments) must ensure that the portions of their premises open to the public are accessible to persons with disabilities in accordance with detailed accessibility guidelines published by the U.S. Department of Justice, which were last updated in 2010. Compliance with the Act may require a business to make “reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations.” And modifications to physical premises may also be required, such as addition of an ADA accessible bathroom or a wheelchair ramp. These accessibility requirements apply to both new construction as well as to buildings constructed before the effective date of the ADA (i.e., there is no “grandfather” provision that exempts preexisting structures).
Are Websites Places of Public Accommodation?
The ADA has been around for more than 30 years, and by now most business owners are aware of these accessibility requirements for brick-and-mortar establishments. Over the years there has been an increase in lawsuits pertaining to Title III with respect to the accessibility of physical premises. However, the new frontier in ADA accessibility is not physical places of businesses – it’s cyberspace, and more particularly websites operated by companies that may or may not have physical business premises.
Since the introduction of the internet, the way people and businesses interact has changed with more people engaging in commerce using the internet. In recent years, the question of whether the internet is a place of public accommodation and whether businesses have to provide access to disabled persons have become a controversial ADA issue for the courts to resolve. Do websites have to be accessible to persons with disabilities – such as individuals with vision or hearing impairments?
The ADA does not provide a clear answer, as Congress did not consider the implications of the internet when the ADA was enacted. In 1990, the internet was not part of people’s daily lives to the extent that it is today. Neither Act nor the DOJ’s accessibility standards address website accessibility or whether the internet is a place of public accommodation. The determining factor of whether a disabled person must be accommodated rests on whether the internet/website is within the ADA’s definition of a “place of public accommodation” which must be made accessible to persons with disabilities.
Given the lack of guidance in the Act, courts have been left to determine this issue. Not surprisingly, courts are divided. The First, Fourth, and Seventh Circuits have concluded that a website is a place of public accommodation. The Third, Sixth, and Ninth Circuits have held that a website is a place of public accommodation, but only if it has a close nexus to a physical place of business. District courts in the Second Circuit have provided contradicting rulings. The Eleventh Circuit recently ruled that a website is not a place of public accommodation, but then later vacated its decision due to a mootness issue in the case before the court. The Fifth Circuit (whose decisions are controlling for Louisiana, Texas and Mississippi) has not decided the issue. So far, the U.S. Supreme Court has declined to give an opinion on the matter.
ADA Website Litigation
Litigation of website accessibility issues has become rampant in California and Florida. Many of these ADA website accessible claims are brought by repeat litigants, some of whom have filed hundreds or even thousands of lawsuits. Unlike physical barrier claims, it is much easier for plaintiffs to establish a claim without ever leaving the comfort of their home. An ADA website plaintiff only needs a computer and internet connection to “visit” targeted businesses in cyberspace and can generate hundreds or even thousands of claims against businesses large or small. The plaintiff only has to allege that he/she suffered a harm due to an inability to access a feature when visiting the website.
What Is an ADA Accessible Website?
In the meantime, what can companies do to protect themselves from this new wave of ADA claims? The best practice is to make the businesses website “accessible,” but given the lack of clear standards, this may be easier said than done.
The World Wide Web Consortium (“W3C”), a non-governmental agency, has created guidelines on web content accessibility. W3C updates its standards often to adapt to evolving technology. Currently, there are two acceptable Web Content Accessibility Guidelines (“WCAG”) available for business. WCAG is organized around four guiding principles: perceivable (users must be able to perceive the information being presented), operable (users must be able to operate the interface), understandable, (users must be able to understand the information and the operation of the user interface), and robust (users must be able to access the content as technologies advance). WCAG has recommendations on how to make websites more accessible for people with blindness (low vision), deafness and hearing loss, learning disabilities, cognitive limitations, limited movements, speech disabilities, and photosensitivity. Some courts and the DOJ have often relied on WCAG when determining whether a website violates the ADA. However, WCAG is not binding, and is an ever-evolving work in progress. With no clear direction, it may be helpful for businesses to compare their websites to WCAG. At the very least, it will give businesses an idea of the standard a court may use to determine if a website violates ADA. Conversely, making a website compliant with WCAG can be difficult, expensive, and time consuming. Not to mention, that WCAG updates will continue in the future.
Complicating matters even further is the ongoing debate regarding what it means to make a website WCAG compliant. The most effective way is to rebuild the entire website from the ground up consistent with these technical standards. But depending on the complexity of the website, this could cost tens of thousands of dollars. Enterprising software developers have started to market plug in applications that purport to automatically modify an existing website to make it compliant with WCAG. These apps are commonly referred to as “overlays.” While these overlay solutions are far less expensive, there is significant debate in the disability advocacy community about whether these programs actually make a website functionally compliant with the WCAG standards. Some courts have held that overlays do not make a website ADA accessible.
The Path Forward on ADA Website Accessibility Issues
The number of ADA website compliance lawsuit suits will likely increase with the consistent changes in technologies. In addition to lawsuits, there have been countless demand letters sent by attorneys (in some cases sent to hundreds or thousands of businesses) threatening litigation unless the business agrees to enter a settlement agreement with the attorney’s client in which it agrees to make the site compliant and pays thousands of dollars in attorney’s fees and compensatory damages.
In Louisiana, there has not been any reported litigation regarding ADA website compliance. However, many businesses are starting to receive ADA website compliance demand letters, so there is no doubt that this new wave of ADA litigation is headed to Louisiana. In the meantime, however, there are many Louisiana businesses who have been named as defendants in lawsuits filed in other states (like California or Florida) based on the fact that a resident of those states browsed the websites from those jurisdictions.
Recently, the DOJ indicated a strong commitment to increase its focus on federal accessibility laws. Although it has not issued compliance standards, the DOJ has taken the position (in a guidance memorandum issued on March 18, 2022) that a website is a place of public accommodation. The DOJ is currently working on compliance regulations on the accessibility of federal government websites, and once those regulations are issued, regulations applicable to private sector businesses may soon follow.
In addition to Title III public accommodation issues, these businesses should also be aware that these same accessibility issues can also come into play in the form of possible ADA issues under Title I of the Act concerning employment. To the extent that employees are required to access an employer’s website or intranet in connection with their employment, employers will have to take steps to make these tools accessible in light of the requirement that employers provide “reasonable accommodation” to employees with disabilities.
Although the law of ADA website compliance is far from settled, companies would be well-advised to get ahead of these issues and develop a proactive strategy, rather than waiting for an attorney demand letter or lawsuit to arrive. It is much easier and less expensive to address these issues on the company’s timetable than it is to scramble in reaction to pending or threatened litigation. Companies with questions about these developing ADA issues and best practices should consult with qualified legal counsel to develop the most effective strategy for their business.
 42 U.S.C. § 12101.
 42 U.S.C. § 12182.
 42 U.S.C. § 12181(7).
 42 U.S.C. § 12182 (2).
 https://www.adatitleiii.com/2022/03/federal-website-accessibility-lawsuits-increased-in-2021-despite-mid-year-pandemic-ull/#:~:text=This%2014%25%20increase%20in%20the,increases%20are%20still%20very%20significant; https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/record-number-of-lawsuits-filed-over-accessibility-for-people-with-disabilities.aspx.
 See Mejico v. Alba Web Designs, LLC, 515 F. Supp. 3d 424, 434 (W.D. Va. 2021); Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994); Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001).
 See Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019); Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010–11 (6th Cir. 1997) (en banc); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
 Winegard v. Newsday LLC, 2021 WL 3617522 (E.D.N.Y. 2021(holding that the “ADA excludes, by its plain language, the websites of business with no public-facing, physical retail operations from the definition of ‘public accommodations’ ”) ; Tavarez v. Moo Organic Chocolates, LLC, No. 21-CV-9816 (VEC), 2022 WL 3701508, at *2 (S.D.N.Y. Aug. 26, 2022) (“concur[ing] with the vast majority of other judges in this District who have decided the issue that a ‘place of public accommodation’ includes public-facing websites that are not tethered to a physical location” while “not[ing] that at least seven of its colleagues, one of whom has since ascended to the Second Circuit, have found that Title III of the ADA applies to websites”).
 Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. Apr. 7, 2021).
 Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 908 (9th Cir. 2019), cert. denied, No. 18-1539, 2019 WL 4921438 (U.S. Oct. 7, 2019) (The U.S. Supreme Court denied a petition to review the Ninth Circuit’s decision in Robles v. Domino’s Pizza, LLC, 913 F.3d 898, (9th Cir. 2019)).
 See Andrews v. Blick Art Materials, LLC, 286 F.Supp.3d 365, 370 (E.D.N.Y. 2017) (concluding that “the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, [ ] are hereby determined by the court to be an appropriate standard to judge whether Defendant is in compliance with any accessibility requirements of the ADA”); Del-Orden v. Outback Steakhouse of Florida, LLC, Case No. 16-cv-2319 (S.D.N.Y. Sept. 13, 2016) (Oetken, J.) (DE 13) (requiring Outback to bring the websites of “its parents, subsidiaries, and related entities … into substantial conformance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA”); Alcazar v. Bubba Gump Shrimp Co. Restaurants, 2020 WL 4601364, at *4 (N.D. Cal. Aug. 11, 2020) (declining, in the Title III context, to adopt WCAG 2.1 standards as the test for determining whether a website violates the ADA);