U S L A W www.uslaw.org FALL/WINTER 2016

ADA WEBSITE ACCESSIBILITY

The Time forCompliance

Is NowDove A.E. Burns, John J. Jablonski,

and Hilary A. Dinkelspiel Goldberg Segalla

Now that just about all business entitiesand institutions, public and private alike,rely increasingly on their virtual presence toconduct their affairs and reach customers,the question of where an entity conductsbusiness gets complicated and important.Most owners and administrators understandthat their brick-and-mortar locations mustbe handicap-accessible pursuant to theAmerican with Disabilities Act (ADA). Butin a world that operates as much online asit does on the ground, what does that meanfor websites? Many decision-makers are unawarethat their websites are under increasingscrutiny for compliance with the ADA –scrutiny that could land them in court.From Harvard to Netflix, litigation overwebsite accessibility is on the rise. Retailers,universities, hospitals, financial institutions,municipalities, and service providers that donot want to get caught in this wave of law-suits need to move toward compliance now.

COMPLIANCE WITHOUT CLEARGUIDANCE? The extent to which the ADA appliesto websites is unclear. Nonetheless, the lackof clarity has not stopped plaintiffs from is-

suing demand letters and filing lawsuits al-leging that websites and mobile applicationsdo not comply with the ADA. Advocates argue that not being able tosee words or images or to hear audio onwebsites significantly disadvantages disabledindividuals. This is made worse if a disabilitydecreases the ability to leave the home, be-cause the internet may be that person’s onlyconnection to the outside world. Withoutweb accessibility, a person may not be ableto access their medical records, educationalresources, government services, or shop forgoods. Supporters of web accessibility arguethat the ADA’s promise of providing equalopportunity for individuals with disabilitiesto participate in and benefit from all aspectsof American civic and economic life canonly be achieved if it is clear to state andlocal governments, businesses, and educa-tors that websites must be accessible. The U.S. Department of Justice, the en-tity charged with enforcing the ADA, hasdragged its feet on enacting guidelines forwebsites to be ADA compliant. Nonetheless,the DOJ continues to enforce the ADA ifwebsites do not include features that allowhearing-impaired or visually impaired indi-

viduals access to content. For example, web-sites must be compatible with screen-readingtechnology or include closed captions oraudio descriptions of visual content. Courtsare not hesitating to chart new paths to pun-ish non-compliance, given the lack of clarityor regulations provided by the federal gov-ernment. This creates a legal minefield forcompanies and organizations attempting toensure that their websites are compliantunder the ADA. Under the current landscape, WebContent Accessibility Guidelines (WCAG)2.0 Level AA is the de facto standard appli-cable to public entities, including state andlocal governments and agencies under TitleII of the ADA. WCAG 2.0 AA is also the defacto standard for private businesses underTitle III. As technology continues to ad-vance, however, mere compliance withWCAG 2.0 AA is insufficient without furtherguidance from the DOJ. In 2010, the DOJannounced that in early 2016 it would pub-lish rules to address website accessibility. Butin November 2015, it stated it would tablethe long-awaited Title III proposed rulesuntil at least 2018. The DOJ was expectedto release new Title II guidance early thisyear, but instead withdrew its proposed rule-

U S L A W www.uslaw.org FALL/WINTER 2016

making and issued a Supplemental AdvanceNotice of Proposed Rulemaking on April 28.

COURTS STEP IN In spite of the DOJ’s delays, courts havenot shied away from deciding cases and set-ting new precedents, thus shaping and fore-shadowing the future of website accessibilitystandards. Historically, private businessestypically relied on two primary defenseswhen faced with ADA website accessibilityactions: (1) seeking a stay until the DOJ pro-vides rules and regulations governing web-site accessibility and (2) arguing that theADA does not apply to commercial websitesbased on a theory that their sites were notplaces of “public accommodation,” sincethe ADA traditionally applied only to brick-and-mortar stores. Recent court rulings andrecommendations, though, have made itvery unlikely that either defense will be suc-cessful going forward. In February 2016, a Massachusetts fed-eral magistrate issued a report and recom-mendation denying two universities’requests for a stay until the DOJ issued pro-posed rules on website accessibility. TheNational Association of the Deaf broughtsuit on behalf of a class of deaf and hard-of-hearing individuals against HarvardUniversity and MIT, alleging that the univer-sities failed to provide closed captioning forthousands of videos on their websites. U.S.Magistrate Judge Robertson recommendeddenial of both universities’ requests for astay, stating that the suit may proceed for-ward while the DOJ continues to develop itsproposed rules, especially given that theproposed rules are just that – proposed –and therefore of little aid to the court. SeeNational Association of the Deaf, et al. v.Harvard University, et al., Case No.: 3:15-cv-3 – 23-MGM, United States District Court,District of Massachusetts [Dkt. 50 and 51]. For a website to be subject to the ADA,a threshold requirement is that the websitebe considered a place of “public accommo-dation.” Title III states that “[n]o individualshall be discriminated against on the basisof disability in the full and equal enjoymentof the goods, services, facilities, privileges,advantages or accommodations of any placeof public accommodation by an person whoowns, leases (or leases to), or operates aplace of public accommodation.” 42 U.S.C.§12182. The statute defines “public accom-modation” to include a list of 12 categoriesof establishments, all of which are tradition-ally brick-and-mortar. So far, the circuits have been split as towhether Title III should apply to websites. InMarch 2015, the District Court in Vermontheld that the site of the sale is irrelevant

when faced with an action brought by theNational Federation of the Blind againstScribd, Inc., a digital library offering sub-scriptions on its website and applications fore-readers. Rather, the only thing that mattersis whether the good or service is offered tothe public. While no circuit court has ad-dressed directly whether exclusively internet-based companies are subject to Title III ofthe ADA, we anticipate that the law will shiftin this direction. The DOJ has even hintedto such a shift in this paradigm noting that“[t]he Department believes that title IIIreaches the Web sites of entities that providegoods or services that fall within the 12 cate-gories of ‘public accommodations,’ as de-fined by the statute and regulations.” 75 Fed.Reg. 43460-01 (July 6, 2010). In addition, ina hearing before the House Subcommitteeon applicability of the ADA to private inter-net sites, it was the “opinion of theDepartment of Justice currently that the ac-cessibility requirements of the Americanswith Disabilities Act already apply to privateInternet Web sites and services.” Applicabilityof the Americans with Disabilities Act (ADA) toPrivate Internet Sites: Hearing before the HouseSubcommittee on the Constitution on the Judiciary,106th Cong., 2d Sess. 65-010 (2000). State courts have followed suit in ex-tending the reach of Title III to online re-tailers. In March 2016, Edward Davis, ablind man, sued Colorado Bag ‘n Baggage,claiming that he was unable to shop onlineat the retailer’s site because it failed to pro-vide accessible features, such as screen-read-ing software. In a landmark decision inCalifornia, Judge Foster in San BernardinoSuperior Court granted Davis’s motion forsummary judgment, finding that he hadpresented sufficient evidence that he wasdenied full and equal enjoyment of thegoods, services, privileges, and accommoda-tions offered on the defendant’s website. In April, Netflix entered into a bench-mark settlement agreement to provide audiodescription for many popular titles that itstreams. The technology provides visually im-paired users with an audio description ofwhat is happening in scenes without dialogueor in scenes with significant visual elements. Given that the DOJ has failed to imple-ment a national standard for website acces-sibility, courts are forced to address the issueon a case-by-case basis. It is unlikely goingforward that courts will be receptive to ar-guments that online retailers are exemptentirely from Title III ADA compliance.

PROACTIVE STEPS Organizations with an online presencecan take practical steps now, such as:• Educate individuals responsible for creating

and maintaining website;• Determine to what extent the organization's

current website complies with WCAG 2.0Level AA as we anticipate that the law willmove in the direction of the proposed rule;

• As new websites and features are createdand content is added, consider incorporat-ing technical specifications to make themmore accessible; and

• Conduct an audit with the help of experi-enced legal and technical counsel.

On April 22, the ADA posted on itswebsite a new Technical Assistance section.While it provides links to the proposed rule-making, guidance, and enforcement ac-tions, clear guidance on private sectorcompliance remains unchanged.Therefore, assessment and proactive im-provement of your company’s website acces-sibility is necessary to help avoid ADAenforcement and copycat private lawsuits inthe future.

Dove A.E. Burns is a part-ner in Goldberg Segalla’sEmployment and Laborand Professional LiabilityPractice Groups. With afocus on matters involvingemployment law and em-ployment practice liability

claims, she has extensive experience counselingand defending corporate clients and executivesin cases involving discrimination allegationsand other claims.

John J. Jablonski, co-chairof the firm’s Cyber RiskPractice Group, devotes hispractice to solving complex,high-risk problems that arisefrom the intersection of lawand technology. His com-prehensive understandingof how businesses use tech-

nology helps drive innovative solutions forclients’ data security, privacy, and cyber liabil-ity problems.

Hilary A. Dinkelspiel, anassociate in GoldbergSegalla’s Employment andLabor and ProfessionalLiability Practice Groups,represents employers andmanagement in state andfederal courts and beforeadministrative agencies re-

garding a broad array of employment-relatedmatters.