After the very first trial ever involving the application of the Americans with Disabilities Act to the internet, a federal district judge in Florida found that the ADA applied to some websites under specific circumstances. He then ordered that Winn-Dixie’s website be made accessible by having it meet the standards in WCAG 2.0, Success Level AA. The case is important and deserves attention, but the law concerning that application of the ADA to websites remains uncertain. Still, there are overwhelming practical reasons to do what the court ordered in the Winn-Dixie case.
A Look Back at the History of Digital Accessibility
This wasn’t true as recently as the summer of 2015. When Congress passed the ADA in 1990 it didn’t really think about online business, which was in its infancy. Title III of the statute, which covers private businesses in their dealings with the public, was written to apply to “places of public accommodation.” Ten kinds of public accommodation were listed in the statute, and all ten were clearly physical places of business.
In 1998, however, Congress amended Section 508 of the Rehabilitation Act to require federal government agencies to make electronic information technology accessible. In 2004 a district court in California made a preliminary ruling that the ADA could apply to a business website if the website had some kind of relationship to a physical place of business. The case then settled before anything about the relationship could be defined. DOJ took the position that the ADA applied to all websites, not just those of physical businesses, and began using the threat of litigation to obtain settlements against on-line enterprises. DOJ also began working on regulations for accessible websites, but it couldn’t keep up with technological change or find workable solutions to problems of implementation. For a decade there was no clear requirement that websites be accessible and very little risk of a lawsuit over it.
The Shift Toward a Web Accessibility Imperative
In the summer of 2015 the risk changed dramatically because a private law firm sent hundreds of demand letters and filed dozens of lawsuits claiming that the ADA applied to websites. Copycat firms, seeing the possibility of profit, soon joined in, and advocacy groups joined by the DOJ obtained prominent victories over Harvard and MIT. With hundreds of lawsuits filed and thousands of demand letters sent since late 2015 almost any substantial business with a non-accessible website is likely to be sued sooner or later.
The outcome of a lawsuit alleging internet inaccessibility is not certain. We now have a fair number of decisions from lower courts, but they don’t agree with each other on what the ADA requires. The holdings fall into four broad categories:
- The ADA covers all business websites.
- The ADA covers only business websites associated in some way with a physical business.
- The ADA covers only those portions of a business website that provide services related to a physical business.
- The ADA might or might not cover business websites, but it’s too early for lawsuits because there are no regulations.
These can be endlessly subdivided and analyzed but until we have more decisions from higher courts the result of an internet accessibility lawsuit will depend on which judge hears the case. Two things are certain though: litigation is expensive, win or lose, and the risk of litigation is only increasing as time goes by.
The best way to avoid the expense and uncertainty of litigation is to work toward meeting the WCAG 2.0 AA standard. WCAG 2.0 AA is now the de facto standard for accessibility: applying to government websites through Section 508 of the Rehabilitation Act and, with minor changes, to municipal websites through DOJ’s ADA Title II regulations. It is the standard on which future DOJ regulations will be based, and of course it seems to be where the courts are headed as well. Money spent on lawyers may or may not pay off. Money spent on improving the customer’s experience with an accessible website will always be well spent.
More insight on what the Winn-Dixie lawsuit may mean for your business here.
Richard Hunt is a partner in Hunt Huey PLLC, a business litigation boutique with a practice focused on defending businesses against claims of disability discrimination under the ADA and FHA. He serves as an adjunct professor of Disability Law at the Southern Methodist University Dedman School of Law, frequently speaks on topics related to the ADA and FHA, and is the author of Accessibility Defense (accessdefense.com), a blog dedicated to helping business understand the latest developments in ADA and FHA law.