The Americans with Disabilities Act (ADA) took effect in 1990. The first website came online a year later. Yet the requirements that the ADA places on websites have yet to be fully determined.
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of . . . any place of public accommodation.” This provision raises two questions with respect to online services. First, does Title III of the ADA apply to websites in the first instance? Second, if it does apply, what standards must a website meet to avoid discriminating on the basis of disability?
Most courts to have addressed the first question have answered it in the affirmative. For example, in 2018, the Eleventh Circuit ruled on a motion to dismiss that Dunkin’ Donuts may have violated the ADA by failing to make its website accessible to screen reader software. Similarly, just last year, the Ninth Circuit held that Domino’s Pizza could have violated the ADA, because its online pizza delivery application was not accessible to blind users. These rulings are unlikely to be upset any time soon. The Supreme Court recently denied review in the Ninth Circuit case. And even if the ADA itself is ultimately reinterpreted or amended, similar state laws may nevertheless still prohibit online services from discriminating on the basis of disability. Indeed, state courts in California—an important and often pioneering jurisdiction in tech regulation—have interpreted California law to prohibit websites from discriminating on the basis of disability.
However, this prohibition may not apply to all websites. Some courts have suggested that only websites with a connection to a physical public accommodation fall within Title III of the ADA. For example, in the Eleventh Circuit’s ruling, the court relied on the fact that Dunkin’ Donuts’ website “is a service that facilitates the use of Dunkin' Donuts' shops, which are places of public accommodation.” The Ninth Circuit’s decision rested on similar reasoning, emphasizing that Domino’s website helped users access “a place of public accommodation—Domino's physical restaurants.” But not every court to address the issue has come down the same way. The First and Seventh circuits have held that a public accommodation may not discriminate on the basis of disability “whether in physical space or in electronic space.” Whether a website is covered by the ADA depends on which Circuit’s law applies.
A potentially more concerning area of uncertainty, however, is the absence of any official standards that websites can satisfy to definitively avoid a statutory violation. The Assistant Attorney General, in a response letter to Congress, has taken the stance that the ADA applies to websites provided by public accommodations. Yet despite issuing an Advance Notice of Proposed Rulemaking in 2010, the Department of Justice has so far declined to promulgate regulations that would clarify what websites must do to comply with the ADA. The general terms of the statute itself offer relatively little guidance; broad nondiscrimination principles do not reduce easily or unambiguously to HTML and Javascript.
However, this absence of official guidance may be less problematic than it initially appears. Although the Department of Justice has yet to issue binding regulation, the World Wide Web Consortium (W3C), a private organization responsible for defining web standards, has created the Web Content Accessibility Guidelines (WCAG) to help websites provide greater accessibility to disabled users. In general, WCAG requires websites to provide textual descriptions or alternatives to any audiovisual media, and to ensure that all of the website’s features are available even when a user can only provide input from the keyboard. These standards are highly specific, offering clear guidance to web developers tasked with implementing them.
Of course, the Web Content Accessibility Guidelines are not the law. But courts deciding suits filed against websites for violating the ADA have frequently ordered compliance with WCAG 2.0 standards. WCAG compliance is therefore likely sufficient in many cases to satisfy the ADA. Additionally, other branches of government have relied on WCAG as well. The Architectural and Transportation Barriers Compliance Board has incorporated WCAG 2.0 standards into regulation promulgated pursuant to § 508 of the Rehabilitation Act, which requires federal agencies to ensure that electronic information is accessible by people with disabilities. Even though these standards are provided by a private organization, the executive and the courts have each tended to look favorably on WCAG.
Both the World Wide Web and the Americans with Disabilities Act are now three decades old, but ADA suits against providers of online services have only just begun to proliferate. Although the Department of Justice has yet to provide definite guidelines for websites under the ADA, existing judicial and administrative authority makes clear that online services operated by public accommodations must be equally available to people with disabilities. Until official regulations are promulgated, public accommodations operating websites can look to existing industry standards in order to reduce their legal risk, and to ensure their services are accessible to everyone.