Because of some fairly recent case law, businesses may need to be concerned about whether their websites, mobile applications and other online properties must be reasonably usable by disabled
persons and, in particular, those with sight, hearing and physical disabilities. The federal statute defines a “public accommodation” as including the attached list of facilities, and thus subject to the Americans with Disabilities Act (commonly known as, the “ADA”) regulations. Case law has determined that if the website for brick-and-mortar facilities provides support or supplemental services such as online purchasing, directions to facility sites, explanation of business services, etc., there is a nexus between the facility and the website such as to require website provision of reasonable modifications to permit disabled persons to have full and equal enjoyment of the goods and services which the facility otherwise provides “on the ground.” Some case law even requires such reasonable modifications even if there is no brick-and-mortar underlying facility (i.e., online insurance applications/sales, online digital library access, Netflix services, etc.). We recommend that you err on the side of caution in determining the need for website disability access, regardless of whether yours is a brick-and-mortar business.
However, case law also holds that a “public accommodation” only is required to provide reasonable modifications or auxiliary aids and services for the disabled to the extent that such
modifications are not unduly burdensome or do not fundamentally alter the nature of the business. While those are somewhat vague terms, courts have looked to the nature of a particular business, sometimes considering the economic expense of providing modifications in determining whether it is too burdensome. What may be a reasonable requirement for one business may not be for another.
If you have questions about whether your business and its website fall within the above requirements for reasonable modifications or need assistance with organizing and conducting an audit of your online properties to ensure compliance, please do not hesitate to contact the firm for further guidance. Discussing with and conducting an audit of your online content and properties with in-house IT personnel and/or outside qualified tech consultants to determine what modifications could be implemented and their cost is also prudent. Similar to the situations where claimants cruise around brick-and-mortar facilities looking for alleged ADA violations on which to make claims, such searching is now ongoing with respect to business activities conducted on the Internet. Therefore, we recommend that our clients be proactive in determining whether they are in compliance or at-risk before getting hit with any such claim to ensure equal access and appropriate reasonable modifications are in place for accessing your online properties.
EXAMPLES OF PUBLIC ACCOMMODATION FACILITIES
A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
B) a restaurant, bar, or other establishment serving food or drink;
C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
D) an auditorium, convention center, lecture hall, or other place of public gathering;
E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, offrce of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
G) a terminal, depot, or other station used for specified public transportation; a museum, library, gallery, or other place of public display or collection;
H) a museum, library, gallery, or other place of public display or collection;
I) a park, zoo, amusement park, or other place of recreation;
J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
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