One of the hottest topics in the ADA legal world is whether websites (and their ilk, like smartphone applications or other technological public platforms) have to be accessible to people with disabilities. Without ADA oversight, website development often prioritizes certain users—those who access content visually or using a mouse, for example. Blind people who use a screen reader and text instead of visual content, people who use hands-free technology instead of a mouse, people with low vision who can’t pick out lettering with low color contrast—all of these users can be left out when design is not inclusive.
An ADA Loophole for Websites?
Companies claimed a potential loophole in ADA coverage allowed this discriminatory website development to continue.[1] Title III of the ADA, of course, applies to private companies. If they operate “any place of public accommodation” they cannot discriminate, which means they must provide reasonable accommodations to ensure “full and equal enjoyment” of a company’s services for people with disabilities.[2] Some companies, though, argued that websites are not covered by the ADA because they are not physical places.
Other companies worked with disability advocates and experts to make their websites accessible to all.[3] But the legal arguments continue.[4] Indeed governments, who can’t make the “place” argument because that language is not included in Title II, the part of the ADA that governs their programs, have sometimes tried to duck website accessibility on other grounds. They argue that they can provide they can build discriminatory websites as long as they provide “meaningful access” by other means, like the telephone.[5]
What Does ADA Accessibility Mean for this New Realm?
The Department of Justice under the Obama administration proposed regulatory clarification; the Trump-era DOJ quickly withdrew the proposal,[6] although even the Trump DOJ thought websites should have some level of accessibility. A law firm that defends companies against ADA lawsuits bemoaned the confusion created by withdrawing the proposal: “This is an unfortunate development for the disability community and covered businesses alike. Instead of having clear rules to follow, businesses will have to look to the constantly evolving patchwork of decisions coming out of the courts for guidance.”
There is no doubt that clarity would help everyone. A regulation could clarify that websites need to follow the Web Content Accessibility Guidelines (WCAG), a widely agreed expert standard. But that will take time, and the eventual outcome is uncertain. The Supreme Court has been receptive to a recent wave of challenges to regulations.[7] Moreover, if we’ve learned anything in the past four years, it is how quickly rules made by executive action can change with the swing of a few votes in an election.
Courts Can Clarify the Law If Congress Does Not Act
The ideal solution is probably for Congress to act to update the ADA, to clarify that it covers websites and other technological public platforms. Congress could give the DOJ power to adopt a specific standard like the WCAG. If that does not happen (and it doesn’t seem likely), it may be that well-litigated court cases provide as strong of an avenue for legal clarity as regulation. Already, cases are breaking in favor of requiring accessibility for many commercial websites.[8] As Justice John Marshall opined in Marbury v. Madison, “It is emphatically the province of the judicial department to say what the law is.”[9]
[1] See, e.g., Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019). The internet cases built on cases examining whether insurance and employee benefits policies were places of public accommodation, subject to Title III. Compare, e.g. Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (holding that a public accommodation “is not limited to actual, physical structures”) and Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999) (“[T]he statute was meant to guarantee more than physical access.”), with Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (holding that employment benefit plan is not a public accommodation covered by Title III).
[2] 42 U.S.C. § 12182(a).
[3] See, e.g. Law Office of Lainey Feingold, Settlements in Structured Negotiations, at https://www.lflegal.com/negotiations/ (visited February 22, 2021).
[4] See, e.g. Namisnak v. Uber Techs., Inc., No. 17-CV-06124-RS, 2018 WL 7200717, at *4 (N.D. Cal. Oct. 3, 2018) (rejecting Uber argument that it is not covered by the ADA because its service is an app and not a physical place).
[5] See, e.g., Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2016 WL 11706706, at *2 (S.D.N.Y. Oct. 7, 2016) (denying preliminary injunction for inaccessible change of address website because telephone and mail options were available).
[6] 82 FR 60932 (Dec. 26, 2017).
[7] See, e.g. King v. Burwell, 576 U.S. 473, 485 (2015). A useful overview from Thomas A. Lorenzen and Sharmistha Das for the American Bar Association is here.
[8] See Murphy v. Bob Cochran Motors, Inc., No. 1:19-CV-00239, 2020 WL 6731130, at *7 (W.D. Pa. Aug. 4, 2020) (collecting cases), report and recommendation adopted, No. 1:19-CV-239-SPB, 2020 WL 5757200 (W.D. Pa. Sept. 28, 2020).
[9] Marbury v. Madison, 5 U.S. 137, 137 (1803).
ADA Update 
[…] service. As such, it was not covered by the law, it said. Though there is some controversy about whether websites are covered, no court has ever accepted this argument from Uber or a similar service, to my […]
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