Americans with Disabilities Act
The Department of Justice’s (DoJ) policy on website accessibility states that Titles II and III of the ADA apply to state and local governments and covered business entities whenever they correspond via the internet. Title II encompasses the activities of state and local governments regardless of the size of the government entity or receipt of Federal funds. Therefore, state and local governments must give people with disabilities an equal opportunity to benefit from all programs, services and activities. Title III addresses businesses and non-profit service providers that are places of public accommodation, privately operated entities offering certain types of courses and examinations, privately operated transportation and commercial facilities. As a result, the effective communication rule applies to these entities that use the internet as a means of communication for their goods, services or programs because they must be prepared to present these communications through an accessible medium.
In 1999, the National Federation of the Blind brought litigation against America Online (AOL) because its website was inaccessible to the blind. A settlement reached by the parties required AOL to change its website going forward so that it would be compatible with screen reader assistive technology.
In 2002, Access Now, Inc. filed a lawsuit against Southwest Airlines claiming that its website was inaccessible to the blind. The district court granted Southwest’s motion to dismiss on the grounds that its website was not a “place of public accommodation.”
In August 2004, Priceline.com and Ramada.com agreed to implement a variety of accessibility standards that will enable users of assistive technology to navigate these sites. Investigations conducted by the New York Attorney General’s Office in 2003 found that parts of these websites were not accessible to screen reader software. Screen reader software is a type of assistive technology that converts text into speech and reads pages on display. Consequently, an agreement was reached whereby these companies will implement a range of accessibility standards authored by the Web Accessibility Initiative (WAI) of the W3C.
Prior to this case, there were other rulings regarding the ADA’s relationship to the internet. Harold Hoooks v. Okbridge, Inc. No. 00-5081 posed questions regarding the proper interpretation and application of Title III of the ADA to a company that operates solely on the internet. The two questions posed were whether a company that offers services solely on the internet is subject to the public accommodations provision of Title III of the ADA and whether a for-profit company operating a web site that enables users to play in electronic bridge tournaments for a fee is a “private club” exempted from the non-discrimination requirements of Title III of the ADA. Prior to the dismissal of this case, the DoJ’s opinion was that Title III did apply to the Web. However, due to the dismissal, there was no binding court decision.
In Martin v. Metropolitan Atlanta Rapid Transit Authority (MARTA) No. 1:01-CV-3255-TWT, MARTA was sued under Title II of the ADA. The list of complaints included the lack of scheduling and route information available in alternative formats. MARTA had a website with this information and a policy to make it available by telephone or in Braille if requested. However, the plaintiffs argued that the website was inaccessible and the alternative formats policy often not implemented. The court issued a preliminary injunction in October 2002. The judge ruled that MARTA violated the ADA by not making effective Braille, phone, and web information available. He did not say that the inaccessible website was a violation, but rather that the denial of access to the information was a violation of the ADA. He ordered the parties to agree on appropriate remedies.
The Americans with Disabilities Act received a key update in 2012 when the United States District Court of Massachusetts ruled that a website can be a public accommodation. On June 19th, the district court issued a Memorandum and Order Regarding Motion for Judgment on the Pleadings in the matter of the National Association of the Deaf, et al. (NAD), versus Netflix Inc. The plaintiffs brought action under Title III of the Americans with Disabilities Act (ADA) against Netflix for Netflix’s “failure to provide equal access to its video streaming web site, ‘Watch Instantly,’ for deaf and hearing impaired individuals.” The court’s ruling upheld that the site was a place of public accommodation as defined in the ADA. You can read more in our blog post about the case.
Cases and Settlements
Case frequency varies by industry but over time has increased. A review of the dates and types of cases listed below will show an increase in recent years and an extension of the types of suits that are pursued, from a focus purely on financial services firms to a broader focus on healthcare providers, internet retailers and service providers.
The vast majority of cases do not go to trial and are settled under structured negotiations. In the case of class action suits these negotiations can occur before or after certification of the class. Generally the later in the process the defendant seeks to settle the more restrictive the technical requirements applied and the more aggressive the timeline for implementation.
The exact requirements for compliance vary from case to case but the vast majority of recent case settlements require WCAG 2.0 A conformance and best efforts to achieve AA conformance. This set of requirements is more restrictive than what most organizations choose to conform to if they address accessibility in a proactive fashion. So, in addition to the legal and settlement costs, organizations face a higher burden of compliance by reacting to suits versus proactively defining a level of compliance.
- National Association of the Deaf, et al. (NAD), versus Netflix Inc. (2012)
- Cari Shields, et al v. Walt Disney Parks and Resorts– Class Action (2012)
- Greater Los Angeles Agency of Deafness v. Time Warner (2011)
- American Council of the Blind (ACB) v. American Cancer Society (ACS) (2011)
- ACB, the Bay State Council of the Blind (BSCB), and the California Council of the Blind (CCB) v. Major League Baseball (MLBAM) (2010)
- ACB, AFB, and CCB v. CVS Pharmacy (2009)
- ACB, AFB, CCB v. Staples (2009)
- State of New York v. HSBC (2009)
- National Federation of the Blind (“NFB”) v. Law School Admissions Council (“LSAC”) (2009)
- Smith v. Hotels.com and Expedia.com (2009)
- ACB, AFB, CCB v. Rite Aid (2008)
- ACB, CCV v. Equifax, Experian and TransUnion (2008)
- ACB, AFB, CCB v. RadioShack (2007)
- NFB v. Amazon (2007)
- NFB v. Target (2006)
- ACB v. LaSalle (2005)
- ACB v. SSA (2005)
- Bay State Council of the Blind v. Citizens Bank (2004)
- Pierce and Byrne v. BankOne (2003)
- Dardarian v. First Union (2003)
- Bay State Council of the Blind v. Sovereign Bank (2002)
- CCB and Florida Council of the Blind v. Washington Mutual (2002)
- Bay State Council of the Blind v. Fleet Bank (2001)
- CCB v. Bank of America (2000)
- NFB v. Connecticut Attorney General’s Office (2000)
- NFB v. AOL (2000)
In reviewing the risk from the ADA, organizations should note that there are no specific published technical requirements that define how the ADA is applied to the Internet. This introduces a level of risk to an organization, since the target compliance requirements may not conform to final U.S. Department of Justice (DoJ) or Access Board issued policy. However, a variety of public and private sector organizations have been sued for inaccessibility under the ADA.
The closest thing to current official policy is the DoJ Advanced Notice of Proposed Rulemaking (ANPRM) relating to Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. This ANPRM indicates that the DoJ sees the WCAG A and AA requirements as the logical implementation requirements for the web-based portion of services for organizations covered under the ADA. The U.S. Access Board’s recent ANPRM on the Section 508 Refresh provides a similar blanket mandate for the use of WCAG A and AA requirements as the baseline for the updated Section 508 requirements. The final NPRM for the Section 508 Refresh is widely expected to require WCAG AA conformance for websites. The Department of Transportation’s recent Air Carrier Access Act requires WCAG AA requirements. In addition, nearly all of the recently settled web accessibility cases relating to the ADA have been settled by requiring the defendant organization to conform to either A or AA requirements, or to a mix of both.
Therefore, while SSB stresses that no specific technical standards for the ADA compliance of web sites exist, SSB is reasonably confident in selecting the WCAG 2.0 A and AA requirements as the likely ADA technical standards.
The current rulemaking process for the ADA as applied to websites has been split into two separate rulemaking activities:
The first activity relates to Title II of the ADA, which has to do with State and Local Government websites. The Department of Justice has issued guidance that a Notice of Proposed Rulemaking (NPRM) will be issued in August 2014 to further develop the requirements for Title II of the ADA. These regulations will eventually amend 28 CFR 35. The Regulation Identifier Number (RIN) is 1190-AA65 and more information on RIN 1190-AA65 can be found on reginfo.gov.
The second, and potentially far wider activity, relates to Title III of the ADA, which has to do with public accommodations. Public accommodations are broadly defined, and include a wide swath of the private sector. The Department of Justice has issued guidance that a Notice of Proposed Rulemaking (NPRM) will be issued in March 2015 to further develop the requirements for Title III of the ADA. These regulations will eventually amend 28 CFR 36. The Regulation Identifier Number (RIN) is 1190-AA61 and more information on RIN 1190-AA61 can be found on reginfo.gov.