Websites and mobile apps (collectively “website(s)”) are a common tool used by businesses of all varieties and sizes to reach current and potential customers. They have revolutionized the manner in which businesses advertise and service customers. While websites may be a convenient way to reach a wider audience, they may, however, be a potential source of liability with regards to Title III of the Americans with Disabilities Act (ADA).
In addition to prohibiting disability discrimination in the terms and conditions of a person’s employment, the ADA also prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (privately operated entities, such as banks, movie theaters, and retailers whose operations affect commerce and that fall into one of twelve categories listed in the ADA), and requires places of public accommodation to comply with ADA standards.
Plaintiffs’ lawyers are threatening suit against companies’ whose websites and mobile apps are not accessible by the blind and visually impaired and thus denies those that are blind or visually impaired the same opportunity to the “full and equal enjoyment” of goods and services of the place of public accommodation. A complaint would seek to require the company to embed their website with invisible text, which could be read by screen reader software.
Exactly how websites fit into ADA governance is a transient area of the law. Courts are currently split on the issue, but the law is trending toward requiring compliance. Indeed, the Department of Justice (the agency charged with promulgating rules and regulations under the ADA) has opined the ADA covers websites, and that it intends to engage in future rulemaking on this topic. A minority of jurisdictions (First and Seventh Circuits) have found that a place of public accommodation need not be a physical place. However, a majority of jurisdictions (Third, Sixth, Ninth, and likely the Eleventh Circuits) have found that a place of public accommodation must be physical place. In those jurisdictions where a public accommodation does not have to be a physical location a website is found to be public accommodation, and consequently absolutely subject to Title III of the ADA.
Websites still may be subject to the ADA in jurisdictions requiring a public accommodation be a physical place. A website could still be in violation if there is a “nexus” or connection between the challenged services and goods offered through a website and the physical place of the public accommodation.
While websites must likely comply with the ADA, the standard for compliance is flexible and gives much discretion to the public accommodation. The ADA contains what is known as the “Auxiliary Aid Requirement.” 28 C.F.R. § 36.303 requires that a public accommodation take necessary steps to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary or supplemental aid that would remove barriers to the disabled individual, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. The DOJ has explained that the ADA obligates public accommodations to communicate effectively with customers who have disabilities concerning hearing, vision, or speech. The type of auxiliary aid or service necessary to ensure effective communication is left to the public accommodation provided that the public accommodation is actually, effectively communicating with the individual and the individual’s disability does not prevent that individual from enjoying the goods and services offered by the public accommodation.
While the “auxiliary aid” standard may be the law now, it looks as though more definitive standards are on the horizon. In an Advanced Notice of Proposed Rulemakings (ANPRM), the DOJ has favored Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA standards. WCAG Standards were created by the Web Accessibility Initiative of the World Wide Web Consortium (“W3C”). The WCAG 2.0 contains three different thresholds of accessibility; A, AA, and AAA. The DOJ’s most recent ANPRM was withdrawn in April 2016, but the DOJ contemporaneously issued a Supplemental Advanced Notice of Proposed Rulemaking that seeks additional information on what standards it should put in place regarding website accessibility. While it is unclear what standards the DOJ will ultimately adopt, industry experts predict it will adopt the current WCAG 2.0 AA standards. Moreover, recent settlement agreements involving claims the DOJ has pursued against public accommodations have required the public accommodation to put in place the WCAG 2.0 standards, not only with their website, but with mobile apps and sites meant for mobile browsing.
With this in mind, best practices would recommend a proactive approach towards adopting the WCAG 2.0 AA standards. It appears a website embedded with alternative text to allow a blind individual to navigate the website would satisfy most claimants. At the very least a public accommodation must show it can effectively communicate with a disabled individual.
Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.
 28 CFR part 35, app. A, 75 FR 56163, 56236 (Sept. 10, 2010).
 See Carparts Distribution Center, Inc. v. Automotive Wholesaler’sAssoc. of New England, Inc., 37 F.3d 12, 18-20 (1st Cir.1994) (holding that a trade association which administers a health insurance program, without any connection to a physical facility, can be a “place of public accommodation”); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the public in both physical and electronic space, including websites).
 See Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1014 (6th Cir.1997) (holding that “the clear connotation of the words in § 1218(7) is that a public accommodation is a physical place,” because “[e]very term listed in § 12181(7) … is a physical place open to public access”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3rd Cir.1998) (holding that “the plain meaning of Title III is that a public accommodation is a place,” and that § 12181(7) does not “refer to non-physical access”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir.2000) (following Parker and Ford ); Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1240–41 (11th Cir. 2000) (Noting that § 12181(7) is comprehensive and Congressional intent was not for the ADA to have a broad reach, so while a cruise ship by itself is not a place of public accommodation, the places on the cruise ship which are specifically enumerated by the statute are public accommodations under the statute).
 Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp.2d 196 (D. Mass. 2012).
 Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp.3d 565 (D. Vt. 2015); National Fed’n of the Blind v. Target Corp., 452 F. Supp.2d. 946 (N.D. Cal. 2006).