Does Our Association Website Need To Be ADA Compliant? It Depends!
There has recently been a major influx in litigation involving website accessibility under the Americans with Disabilities Act (ADA). Website accessibility claims arise from assertions that hearing or vision impaired plaintiffs are unable to use screen reading software or other assistive technologies to access the website’s content due to digital barriers on the site. Defendants are usually faced with lawsuits seeking injunctive relief and attorney’s fees. In order to protect against such claims, defendants typically must retain website accessibility experts, which can be expensive, often incentivizing an early settlement to avoid costly legal fees.
The ADA provides equal opportunity for individuals with disabilities which applies to “public accommodations and services operated by private entities.” According to the Code of Federal Regulations (“Regulations”), public accommodations include 12 specific categories of organizations generally described as “service establishments” and includes “places of education.” Although the Regulations do not specifically identify nonprofit organizations and trade associations as public accommodations, the Regulations do include “private [entities] that offer[ ] examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes.” In addition, if the private entity offers goods or services via their website, they may fall under the parameters of the ADA for website compliance purposes.
Beginning in 2010, the Department of Justice (“DOJ”) took an interest in ensuring website accessibility, issuing an Advance Notice of Proposed Rulemaking. The rule proposed set to revise the ADA Regulations to expressly provide requirements as to website accessibility. Ultimately, the DOJ reversed course and decided against revising the Regulations, but not before it entered the website accessibility litigation playing field, filing more than 250 lawsuits by 2015. While the DOJ has seemingly moved away from this issue, the number of lawsuits instituted by individual plaintiffs has increased dramatically from fewer than 300 lawsuits in 2016 to over 2,000 lawsuits in 2018 alone. Based on the current environment, we expect the number of these lawsuits to continue to increase because of the relative ease of searching for and identifying inaccessible websites, the lack of need to prove actual damage or injury by the plaintiff, and the fact that attorney’s fees are part of the damages allowed.
Since there are no regulations dealing with the specific issue of website accessibility, courts have to decide these cases without guidance. This has resulted in a split in the federal circuit courts as to whether websites, which are not technically “physical” structures, are places of “public accommodation” under the ADA. The First and Seventh Circuits have held that places of public accommodation do not need to be physical structures while the Third, Sixth, Ninth and Eleventh Circuits have held that places of public accommodation are physical structures and that a website accessibility claim can only be asserted if the alleged inaccessibility has a nexus to the goods and services offered at a physical location.
In February 2019, the Ninth Circuit Court of Appeals entered judgment in favor of a plaintiff who alleged that the Domino’s Pizza website was inaccessible. Domino’s appealed the case to the United States Supreme Court. On October 7, 2019, the Supreme Court denied cert, meaning it decided not to review the Ninth Circuit decision, leaving the Ninth Circuit’s decision untouched. Thus, the highest court has declined to overturn a decision holding that the ADA applies to websites.
If a nonprofit website is a means for persons to access education, courses and examinations directed to licensing, certification or credentialing, then those nonprofits may be deemed to be a ‘place of education’ and, therefore, subject to ADA compliance. Among the obstacles faced by disabled people are: images without text equivalents, documents not in an accessible format, lack of specification of colors and font sizes, and multimedia without accessible features. Given the dramatic rise in website compliance lawsuits, every nonprofit organization should proactively evaluate its website and app for accessibility. If there are issues with accessibility, plans need to be implemented to address the inaccessibility.
Please contact Jennifer Jackman
to discuss this issue and the proactive steps you can take to mitigate this risk.