Does your website violate the law?

My August column for the South Carolina Press Association:

When signing the Americans with Disability Act in late July 1990, President George H.W. Bush said that under the law “every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.”

President Bush’s reference to doors was likely deliberate, since one of the primary goals of the legislation was to remove physical barriers that prevented disabled individuals from gaining access to facilities, including businesses, in their daily lives. Thus Title III of the Act (42 U.S.C. §12181, et seq.) bars “places of public accommodation”—basically, any facility that serves the public—from discriminating against the disabled in the provision of goods and services, including altering policies, procedures and, when practical, physical barriers that result in such discrimination. Other sections of law prohibit discrimination and require accommodation in employment, government services, public transportation and telecommunications. Another law in 2010 extended the accessibility requirements to new services such as text messaging, email, instant messaging, and video communications.

In 1998, Congress amended another law, known as section 508, to require communications, including websites, from federally-funded programs and contracts to be accessible as well.

These laws allow private individuals to sue private businesses that do not accommodate those with physical or mental impairments. (The Justice Department can also bring lawsuits.) Private litigants cannot receive damages under the federal laws, but they can get court injunctions requiring facilities to make changes to accommodate the disabled, and also receive attorney fees. Some states have their own laws allowing for damages. For some attorneys who have filed many of these suits, this has become a lucrative business.

Over the years, lawsuits have been brought under the ADA against businesses such as restaurants and retail stores for physical conditions that failed to accommodate the disabled. Other ADA lawsuits have been brought, for example, over a city’s failure to put in curb cuts at intersections and against sports stadium operators and architects for failing to accommodate the handicapped in renovations.

While the ADA was focused on physical and procedural barriers, since the advent of the internet there have been cases filed over websites that fail to include coding and other elements which make them accessible by users with disabilities.

These lawsuits have had mixed results. In 2002, for example, a federal court in Florida dismissed a lawsuit over Southwest Airlines’ website, ruling that the ADA was limited to physical barriers. But in 2008 the retailer Target settled a similar case over its website, after a federal court in California allowed the lawsuit to proceed, ruling that the statute applied to the store’s provision of online services, not only accessibility of its physical stores.

But the number of such lawsuits filed has been growing, from 814 in 2017 to over 2,258 in 2018.
In the first such case to go to trial, a Florida court held in 2017 that Winn-Dixie’s website was a place of public accommodation because it was tightly integrated with the physical stores and violated the ADA because it was not sufficiently accessible to visibly impaired customers. An appeal of this ruling was heard by the Eleventh Circuit Court of Appeals in October, and a decision is pending.

The Domino’s pizza chain has asked the U.S. Supreme Court to review a ruling allowing a similar lawsuit over its website. The high court has not yet decided whether the hear the case.

The federal appeals courts have split on the question of whether the ADA applies beyond a business’s physical locations, and includes websites. The Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals have all held that lawsuits may be brought over business’s websites only when the sites reinforce a limitation also imposed at the business’s physical locations. Thus, if a website is not coded to work with screen readers, but the company’s physical stores and order processes accommodate blind customers (for, by example, allowing phone orders), a lawsuit cannot be sustained in these circuits. The First and Seventh Circuit Courts of Appeals, and trial courts within the Second Circuit, have held that ADA lawsuits can be sustained over a website standing alone, regardless of accommodations by the entity as a whole.

The Fourth Circuit Court of Appeal, which includes South Carolina, has not ruled on this question. But in January it did affirm the dismissal of a lawsuit over accessibility of a credit union’s website when the plaintiff did not meet the criteria for membership in the credit union.

Of course, the primary services that newspapers and other news organizations provide do not occur in a specific physical location (and increasingly, not even in a physical format). But under the rulings that the ADA applies to websites without relation to any physical locations, news organizations may be required under the law to meet standards for access by the disabled.

Just such a lawsuit has apparently been filed against a chain of Oregon weeklies. And similar suits have been filed against other web-only services, including singer Beyonce’s website and a Pokemon site.

Such lawsuits have led to calls for reform of the ADA. Last year the House of Representatives passed a bill to require notice and give businesses an opportunity to remedy access issues before a lawsuit could be filed. The bill was blocked in the Senate.

Still, it is a best practice to make your website accessible to the disabled. The National Center on Disability and Journalism has resources on publishing accessible content, and U.S. Department of Justice provides guidelines on website accessibility (aimed at state and local government, but applicable to all websites).

With about 8.1 million people in the United States having some sort of visual disability, and about 19.9 million having difficulty lifting and grasping objects like a computer mouse, it is imprudent to ignore these customers in newspapers’ website designs. Many courts have held it to be the law. And it just may be the right thing to do.