You’ve undoubtedly read in the news about the spate of lawsuits against restaurants, hotels, retail stores, fast food spots, art galleries and other businesses because their websites and/or mobile apps are incompatible with screen reader software for the visually impaired or do not have closed captioning for videos for the hearing-impaired, and therefore, violate Title III of the Americans with Disabilities Act (ADA). These lawsuits are continuing to mount. In fact, one U.S. law firm who has analyzed the increasing trend of website accessibility lawsuits, reported that the number of such lawsuits has tripled between 2017 and 2018, with no signs of abating.
You may be thinking that’s too bad for business, but this doesn’t impact nonprofits, right? Wrong.
Does the Law Apply to My Nonprofit Organization?
Title III of the ADA, which applies to private entities, states that no individuals 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.
A “place of public accommodation” is a facility whose operations “affect commerce” and fall within at least one of the following twelve categories:
1) Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
2) Establishments serving food or drink (e.g., restaurants and bars);
3) Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums);
4) Places of public gathering (e.g., auditoriums, convention centers, lecture halls);
5) Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers);
6) Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
8) Places of public display or collection (e.g., museums, libraries, galleries);
9) Places of recreation (e.g., parks, zoos, amusement parks);
10) Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
11) Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
12) Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).
If your nonprofit organization arguably meets one of the categories above, it may be a covered “place of public accommodation.” Note, however, that Title III of the ADA does not apply to private clubs, religious entities, or public entities. Private clubs may lose their exemption to the extent that they are made available for use by nonmembers as a place of public accommodation. Public entities are covered under Title II of the ADA.
For nonprofit organizations that are also government contractors, there are also very explicit requirements regarding accessibility of services to the disabled and veterans.
Organizations in the Dark without DOJ Guidance
Litigation is expected to continue to grow, in part, because of a lack of guidance from the U.S. Department of Justice (DOJ) about what a “place of public accommodation” must do to make its website ADA-compliant.
The DOJ is tasked by Congress with issuing regulations under Title III, providing technical assistance, and enforcing Title III in court. Specifically, the DOJ must provide guidance and technical expertise to develop standards that public accommodations must comply with under the ADA. The DOJ promulgated regulations indicating the technical structural requirements for many places of public accommodation. However, it did not issue regulations on the specific accessibility requirements under Title III for websites.
The DOJ has expressed its belief that the ADA applies to Web sites of private entities that meet the definition of “public accommodations.” In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (“ANPRM”) stating that it was “considering revising the regulations implementing Title III of the [ADA] in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.”[1] But to date, despite the ANPRM, the DOJ has declined to issue any such clarifying rules, regulations or guidelines on website accessibility.
Some believe the DOJ has failed to issue such regulations to give organizations and companies the flexibility to decide how to make their websites and other digital media accessible to the disabled. However, in the absence of specific guidance from the DOJ, the lawsuits will continue and the courts will be left to grapple with determining what constitutes compliance with Title III of the ADA with respect to digital accessibility.
This leaves organizations like yours—as well as business—in a sort of limbo, uncertain about what standards should be applied and how best to comply. As most of the cases are brought as private actions by attorneys in court rather than by the DOJ, organizations need to do what they can now to implement best practices.
Although plaintiffs are limited to recovery of $500 in a Title III website accessibility lawsuit for a noncompliant website, there is currently no cap on attorneys’ fees under Title III of the ADA. There is also no notice-and-cure period under the ADA for an entity to fix the problem once notified of it which–in this author’s view–is the loophole allowing such lawsuits to mushroom as they have. If such an amendment to the ADA were implemented, it would likely help reduce the amount of litigation in this area.
Recent Court Decisions and Proposed Legislative Action
There have been a number of recent federal court decisions that have considered the issue of web accessibility under Title III of the ADA. However, federal circuits have been split as to whether a business or organization must have a physical “brick-and-mortar” location with a nexus to its website to be covered by Title III of the ADA (Third, Sixth, Ninth, and Eleventh Circuits) or whether all websites themselves are “places of public accommodation” and must comply with the ADA (First, Second, and Seventh Circuits). See Gil v. Winn Dixie Stores. Inc., 242 F. Supp. 3d 1315, 1318 (S.D. Fla. 2017) (explaining the circuit split); see also Blue Apron, 2017 U.S. Dist. LEXIS 185112, 2017 WL 5186354 (finding, in accordance with First Circuit precedent, that the defendant’s website constituted a place of public accommodation despite having no connection to a “brick-and-mortar” location). Courts have not agreed on how to apply traditional Title III case law to website cases, including when a website impedes access to a physical location, or whether a plaintiff must actually visit a “place of public accommodation” to state a claim after having visited a website.
Recently, in Robles v. Domino’s Pizza LLC, 913 F.3d 898 (9th Cir. Jan. 15, 2019), the Ninth Circuit found that there was a violation of Title III of the ADA because the inaccessibility of Domino’s website and app impeded access to the goods and services of its physical pizza franchises—which are places of public accommodation.
In Robles, the plaintiff who accessed the internet using screen-reading software, which vocalizes visual information on websites, alleged that he was unable to order a pizza on defendant’s website because Domino’s failed to design its website and app so his software could read them. More specifically, he asserted that Domino’s alleged failure to “design, construct, maintain, and operate its [website and app] to be fully accessible to and independently usable to him and other blind or visually-impaired people” violated the ADA. He sought a permanent injunction requiring Domino’s to comply with Web Content Accessibility Guidelines (WCAG) 2.0 for its website and Mobile App. WCAG 2.0 are guidelines created by the World Wide Web Consortium (W3C) which sets the main international standards for the World Wide Web. The purpose of the guidelines is to make websites more accessible to the disabled.
Domino’s moved for summary judgment on the grounds that (1) the ADA did not cover Domino’s online offerings; and (2) applying the ADA to the website or app violated Domino’s due process rights because the DOJ had failed to provide helpful guidance, despite announcing its intention to do so in 2010. More specifically, Domino’s argued that it lacked “fair notice of what specifically the ADA requires companies to do in order to make their websites accessible.” Domino’s alternatively invoked the primary jurisdiction doctrine, which permits a court to dismiss a complaint pending the resolution of an issue before an administrative agency with special competence.
The district court denied plaintiff’s request for an injunction forcing the defendants to ensure compliance with version 2.0 of W3C’s Web Content Accessibility Guidelines (“WCAG 2.0”). It concluded that imposing the WCAG 2.0 standards on Domino’s “without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic “flew in the face of due process.” The district court further held that DOJ “regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III.” The district court invoked the primary jurisdiction doctrine, granting Domino’s motion to dismiss without prejudice. Robles then appealed.
In reversing the lower court, the Ninth Circuit Court of Appeals ruled that Title III of the ADA, prohibiting discrimination in places of public accommodation, applied to Domino’s Pizza’s website and mobile application. In so holding, the court found that the website and mobile application were two of the primary means of ordering pizzas to be picked up at or delivered from pizzerias, which were places of public accommodation. The court concluded that the ADA “applies to Domino’s website and app, even though customers predominantly access them away from the physical restaurant: ‘The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.’” Thus, the court did not find that the plaintiff needed to actually visit the place of public accommodation in order to state a Title III ADA claim.
The Ninth Circuit rejected Domino’s due process argument, concluding that due process did not require the DOJ to issue specific guidelines for ADA compliance in order for Domino’s to be required to ensure its website and mobile application were accessible to the visually impaired.
In contrast, a Florida district court recently rejected a blind plaintiff’s lawsuit where it was alleged that a golf club’s website (in particular, a club newsletter on the site) was incompatible with the plaintiff’s screen reader, in violation of Title III of the ADA. The plaintiff alleged he had gone to the website to see whether he might want to learn to play golf at that golf club. He alleged in particular that due to the fact that he could not read a newsletter on the website, he could not learn of stay-and-play packages, pricing and golf instruction, or membership events, and he alleged that the website itself was a place of public accommodation. See Price v. Escalante – Black Diamond Golf Club LLC, 2019 U.S. Dist. LEXIS 76288, 2019 WL 1905865 (M.D. Fla. Apr. 29, 2019). The court found that the plaintiff failed to adequately plead his standing because he has not suffered an injury-in-fact and had no immediate risk of future injury, and that he also failed to state a claim because he had not pleaded facts showing that the golf club’s website impeded his ability to access and enjoy the golf club. Furthermore, the court rejected the argument that the website itself was a place of public accommodation.
New York
New York seems to be one of the places hardest hit by these lawsuits. A U.S. law firm analyzing the trend of these web accessibility lawsuits found that more than 1500 website accessibility cases/approximately two-thirds of all website accessibility cases brought last year in the U.S. were commenced in federal court in New York. The Second Circuit (which is the federal circuit covering New York, Vermont and Connecticut) has not yet ruled squarely on the issue of website accessibility under Title III of the ADA and what constitutes compliance. But not surprisingly, in view of the number of lawsuits brought in New York, the district courts that have ruled have taken a liberal approach to ADA coverage, finding a commercial website itself to constitute a “place of public accommodation,” and unnecessary to find a “nexus” between a website and a physical location that constituted a place of public accommodation. See Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251, *27 (S.D.N.Y. Dec. 20, 2017) (“the term ‘public accommodation’ in Title III extends to private commercial websites that affect interstate commerce”).
Interestingly, some New York State lawmakers, alarmed by the surge in these lawsuits in New York, plan to enact legislation to curb them. Specifically, the New York State Senate internet and technology committee has proposed possibly providing specific standards under New York law to assist businesses in complying with website accessibility in view of the federal government’s failure to do so. See https://www.adatitleiii.com/wp-content/uploads/sites/121/2019/05/NY-Lawmakers-Plan-to-Address-Surge-in-ADA-Website-Accessibility-Suits-_-Law.com_.pdf
What Should My Organization Do Next?
- Confer with your organization’s attorney about whether your organization qualifies as a “place of public accommodation,” and confer with your attorney and website developer/accessibility consultant about best practices to ensure your organization’s website and mobile app’s content is accessible to the disabled.
- Consider not just the accessibility of your organization’s website or mobile app page to the disabled but also any documents located there as well as online job applications and links to services or products offered, all of which should be accessible to the disabled. Some organizations have established a telephone number on their website for individuals to contact with questions about accessibility for the disabled (but it must provide an equal degree of access to information, options and services available on the website or mobile app; if there are certain things only accessible on the website or mobile app, a phone number will not suffice).
- Consider updating your vendor contracts to: ensure proper protocols for website accessibility under existing WCAG 2.0 Guidelines and any amendments to it are followed, and include appropriate indemnifications of your organization and provisions to protect your organization in the event of a website/mobile app accessibility lawsuit.
- Determine whether your insurance coverage will protect your organization in the event of an ADA web or mobile app accessibility lawsuit, what training can be provided to staff, and how your organization will address the reputational risk in the event of a lawsuit.
What’s the Risk of Not Having Digital Accessibility to the Disabled?
Plaintiffs’ lawyers have made a cottage industry of suing entities that do not have ADA-compliant websites. Aside from the uncapped legal fees an unwitting entity will pay in litigation and $500 in damages to a plaintiff, there is also the issue of reputational risk. Nonprofits, in particular, may face negative reputational damage from media reports that their website and/or services are not accessible to the disabled, particularly where their mission serves vulnerable populations or their website expresses a message of openness while inaccessible to the disabled.
Our firm can provide guidance on whether your organization is covered by Title III of the ADA or other legal requirements mandating website and mobile app accessibility, prepare web accessibility policies for your website and/or mobile application, update your vendor agreements, and provide employee training on reasonable accommodations of disabilities.
[1] Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460-01, 43460 (July 26, 2010).
