By: Gregory L. Scott, Esq. and David J. Gellen, Esq
Because of some fairly recent case law interpreting and applying the 1990 Americans With Disabilities Act (42 U.S.C. Ch. 126, §12101 et seq., commonly known as the “ADA”), businesses should be concerned about whether their websites, mobile applications and other online properties are 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 following non‑exclusive list of facilities, and thus subject to the ADA regulations: (1) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains no 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; (2) a restaurant, bar, or other establishment serving food or drink; (3) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (4) an auditorium, convention center, lecture hall, or other place of public gathering; (5) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (6) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (7) a terminal, depot, or other station used for specified public transportation; (8) a museum, library, gallery, or other place of public display or collection; (9) a park, zoo, amusement park, or other place of recreation; (10) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (11) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (12) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
Certain U.S. courts have 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., then 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”. Other courts have gone further to require such reasonable modifications even if there is no brick-and-mortar underlying facility (i.e., online insurance applications/sales, online digital library access, online television, movie and concert services, etc.).
In particular, lawsuits all over the country have been filed by both individuals and public interest groups resulting in either settlements or court rulings compelling businesses to provide reasonable modifications to their websites to assist disabled persons. On the brick-and-mortar “nexus” side, cases include grocery store chains with online advertising/ordering (Gil v. Winn Dixie Stores, Inc., 242 F.Supp.3d 1315, S.D. Florida 2017), art supply chains (Andrews v. Blick Art Materials LLC, 2017 WL 3278898, E.D. New York 2017) and a myriad of other in‑ground facilities using their websites to further their business interests. Such claims are based primarily on lack of sight and/or hearing disabled modifications. Courts seem to be having very little trouble in determining that the website has a nexus to the brick-and-mortar facility which thus makes it a part of the required “public accommodation” subject to ADA provisions.
The slightly murkier yet expanding concept relates to a business that has no actual physical brick-and-mortar facility that the public utilizes for purposes of conducting business activities offered by the business establishment. In one of the early cases brought by the National Association of the Deaf against Netflix, Inc., the plaintiff argued that ADA regulations apply to website/internet facilities regardless of having an on-the-ground site and involved internet streaming video that did not have closed captions on all programming to assist hearing impaired viewers (National Association of the Deaf v. Netflix, Inc., Case No. 3:11-CV-30168, WD Massachusetts, Consent Decree 10/9/12). While that case was settled before a court ruling by Netflix’ agreement to provide closed captioning on all programs, it appears to have led the way for other similar litigation. As other cases get filed throughout the U.S. court system, a number of courts throughout the United States are rendering decisions expanding the “public accommodation” scope to non-brick and mortar businesses involved with e-commerce online properties.
As recent as November 2017, a class action suit was filed against Hulu LLC by public interest groups representing blind and visually impaired persons, under a similar theory as the prior Netflix lawsuit. Amazon similarly was sued in 2015, directed not only at its online programs but also to its archive of videos that had not already been closed captioned. Yet another example is a national website offering meal plans for home delivery, which again has extended the “public accommodation” definition to businesses operating primarily via the internet (Access Now Inc. v. Blue Apron LLC, 2017 WL 5186354, D New Hampshire 2017). While that case procedurally involved the denial of the defendant’s motion to dismiss as not being a public accommodation, assuming the court follows what appears to be a trend in certain jurisdictions towards a more expansive definition of what constitutes a “public accommodation,” the case appears likely positioned for either a settlement or perhaps may result in a favorable substantive ruling for the plaintiff based on the evolving state of case law.
Notwithstanding the trend in favor of expanding the “public accommodation” scope to non-brick and mortar type businesses, there is still no clear cut uniformity amongst the courts on this issue. For example, the Ninth Circuit Federal Court of Appeals upheld the district court judge’s ruling in the Cullen versus Netflix, Inc. case (Donald Cullen v. Netflix, Inc. 880 F. Supp. 2d 1017 2012) on the theory that the online video provider is “not connected to any actual, physical place” (i.e., not a public accommodation). This ruling demonstrates that there may exist a split among the courts on this issue. Thus, until there is clarifying legislation or additional rules are promulgated by the federal government, business owners should carefully consider the legal landscape in connection with the implementation and rollout of their websites, mobile applications and online properties for use by disabled consumers.
Another aspect of regulation is coming from state laws. An example is a fairly recent California enactment that obligates all state government websites to provide reasonable accommodation for use by disabled persons (California law A.B. 454, October, 2017).
Businesses would be better served to 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” is only 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. Thus, a business should not be obligated to go bankrupt or bear an unreasonable economic burden in making its website useable by disabled persons.
In addition to case law guidance and the statutory language itself, there are other tools that businesses may utilize in determining whether and to what extent their websites must comply. First is the actual federal government website located at www.ada.gov/pcatoolkit/chap5toolkit.htm. This website offers an explanation of why business websites must be accessible and an overview on how to go about making them accessible, assuming they are subject to the ADA. There are also other private websites and articles that discuss the subject. There are numerous companies that, for a fee, will audit and analyze a business website to determine (1) if compliance is required and (2) what is needed to render the website ADA compliant. Discussing and conducting an audit of your online content and properties with in‑house IT personnel and/or outside qualified tech consultants to determine what modification could/should be implemented and the cost is prudent business.
Similar to situations where claimants cruise around brick-and-mortar facilities looking for alleged ADA violations on which to make claims, such searches are now ongoing with respect to business activities conducted on the internet. Therefore, businesses should 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 on-line properties. A preemptive strike in that regard is certainly advisable.