Article No :551 | September 7, 2010 | by Gregory P. Care
Website accessibility is obviously an integral part of user experience; a negative user experience is certain to occur when a consumer cannot access a commercial website, which, in turn, almost always carries negative business consequences. To make matters worse, an inaccessible website may also expose the site owner and/or designer to legal liability.
Accessing the Internet as an Individual with a Disability
Since the Internet transitioned from a predominantly text-based to a graphics-based phenomenon, accessibility of websites has been an issue for individuals with disabilities, most notably those with vision or mobility impairments who cannot easily use standard computer equipment. The number of Americans with such disabilities (already in the millions) is growing each day as aging baby boomers—who have disposable income and are accustomed to spending that income online—develop these disabilities. Individuals with these disabilities rely on adaptive technologies, such as screen reading software, to provide them with feedback that helps them navigate through web pages, obtain information, purchase goods, and contract for services. As a result, website designers should observe some well documented, basic programming tenets when creating or updating webpages to allow users of adaptive technologies to access websites.
Indeed, a website created in accordance with "universal design" typically benefits both disabled and nondisabled users. For example, a website designed to be universally accessible is typically organized better than an inaccessible site, permitting better ease of use and a superior user experience. Further, simple programming techniques allow a universally accessible website to be as aesthetically pleasing as the designers' imaginations will permit. In other words, accessibility is not mutually exclusive of creativity.
Why Accessibility Is Important
There are several reasons it is important to proactively make a website accessible. First, an accessible website expands a business's market to include individuals with disabilities who use the Internet to shop and do research in the same way nondisabled individuals do. In fact, most disability communities share amongst each other which sites to use because they are accessible and which to avoid because they are not. Second, retroactively correcting years' worth of inaccessible programming consumes vastly more financial and programming resources than taking simple steps to make a website accessible when it is initially designed or substantially updated. Third, an accessible site avoids exposure to potential lawsuits.
The Americans with Disabilities Act and the Internet
The principal law pertaining to accessibility of commercial websites is the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Title III of the ADA prohibits discrimination against an individual "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation…." Discrimination includes denial of participation as well as provision of separate, but unequal, goods or services. "Public accommodation" is defined to include operations that "affect commerce;" the law provides 12 general categories of covered businesses such as hotels, restaurants, places of entertainment, sales and rental establishments, service establishments, places of recreation, and places of education. The law also requires affirmative "reasonable modifications" of "policies, practices, and procedures" to make them equally accessible.
The United States Supreme Court has yet to specifically rule that Title III requires private companies to make their websites accessible, but there has been significant guidance from the lower federal courts and the United States Department of Justice (DOJ), which enforces the ADA, that Title III does apply to commercial websites. Many major businesses, including AOL, Amazon, and Target, have relied on this guidance in deciding to make their websites accessible pursuant to Title III.
One of the landmark cases on this issue is Carparts Distribution Center, Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d 12 (1st Cir. 1994). Although Carparts does not actually concern the Internet, it is important because it establishes that "public accommodation" as defined in Title III is not limited to physical structures. Another federal appeals court later adopted the logical foundation laid by the Carparts decision and added that the purpose of Title III
is that the owner or operator of a… Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.
Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (citation omitted).
Like Carparts, however, Doe did not specifically involve a claim regarding accessibility of a website.
The Target Case
Subsequent litigation, however, leaves little question that Title III requires commercial websites to be accessible. The key legal decision in this regard is National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). In that case, the plaintiffs claimed that Target's website, target.com, which offered goods for sale and provided information regarding services offered at brick-and-mortar Target stores, was inaccessible and thus in violation of the ADA and California state law. Target moved to dismiss the claim on the grounds that the laws did not apply to the website. The court rejected Target's argument and focused on the plain language of the ADA in ruling that Target's brick-and-mortar stores are "public accommodations" under the definition set forth in Title III.
The court then determined that target.com was a "service" of Target's stores in light of the transactional and informational connections between the two. It was just a matter of finishing the syllogism that, as a service of a public accommodation, Target.com was subject to Title III. The ruling in Target was based on the "nexus" between the website and the brick-and-mortar stores. Another court in an earlier case, Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), reached a different conclusion than the Target court because the website at issue was not related to a physical place of business. This factor, however, may no longer be part of the analysis after the DOJ issues proposed regulations regarding the ADA's applicability to the Internet.
Upcoming Regulations and the Probable Expansion of the Target Ruling
In conjunction with the 20th anniversary of the ADA, the DOJ has clearly expressed that it regards commercial websites as being covered by the ADA. On April 22, 2010, Samuel R. Bagenstos, the Principal Deputy Assistant Attorney General for Civil Rights, testified before a House subcommittee that
[t]he Department of Justice has long taken the position that… websites of private entities that are public accommodations are covered by the ADA. In other words, the websites of entities covered by… Title III of the [ADA] are required by law [to be] fully accessible to individuals with disabilities.
Emerging Technologies and the Rights of Individuals with Disabilities: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 5 (2010).
Bagenstos went on to describe the DOJ's two "friend of the court" briefs filed in federal appeals courts where the Department expressed the position that "a business providing services solely over the internet is subject to the ADA's prohibitions on discrimination on the basis of disability." Id. at 6. Then, in July, the DOJ released a notice that it was considering regulations on the subject of commercial websites' compliance with the ADA. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460 (proposed July 26, 2010). The notice reiterated the position previously stated by Bagenstos and declared that "the Department is focused on the goods and services of public accommodations that operate exclusively or through some type of presence on the Web—whether hosting their own Web site or participating in a host's Web site…" Id. at 43465 (emphasis added). This clearly indicates that the DOJ is considering an expansion of the Target and Access Now decisions to require public accommodations that do not have a brick-and-mortar presence to make their websites accessible.
Other Laws and Designer Liability
In addition to the ADA are state laws, such as California's Unruh Civil Rights Act and Disabled Persons Act, which are at least co-extensive with the ADA in terms of scope and permit damage awards. These monetary damage awards are even more incentive for a business to make their websites accessible than the standard consequence under Title III of a court compelling a website to be made accessible. The Unruh Civil Rights Act also makes it illegal to aid or abet discriminatory activity, which implicates the actions of website designers as well as website owners. Further, these state laws could very well be interpreted to extend even further than the ADA with respect to accessibility of commercial websites, particularly in the context of online-only businesses.
What Does This All Mean?
In sum, it is clear that Title III applies to commercial websites and there are increasing indications that the DOJ intends to make no distinction between businesses with brick-and-mortar locations and those that operate solely online. In addition to the legal considerations, there are sound business reasons to design accessible websites, including a better user experience for all consumers, avoiding higher costs of retroactive compliance with the law, and increased revenues by capitalizing on an expanded market. Who ever said doing the right thing had to be difficult?