I recently attended a Legal Marketing Association (LMA) meeting in Raleigh, North Carolina, and the main topic of discussion was website compliance with the Americans with Disabilities Act (ADA). The discussion was sparked because it had been the topic of a recent Continuing Legal Education (CLE) presentation. The presentation focused on law firm websites that were not in compliance with the ADA. A large number of those attending the meeting and the CLE were not aware this was an issue generally or in the legal profession. The reason for this lack of awareness may be because Title III of the ADA, which applies to public accommodations like businesses, has traditionally focused on physical spaces.
Although the Department of Justice (DOJ), which is responsible for enforcing the ADA, has not added any clear regulations about websites to the ADA, compliance may still be required. I was surprised to hear that this is not a new issue and the DOJ had been discussing it for years. In June of 2003, the DOJ issued a technical assistance document that included a voluntary action plan for website compliance. In 2006, a class action suit was brought against Target alleging that Target.com was not accessible to the blind, in violation of the ADA. The suit resulted in a $6 million settlement and Target agreeing to modify its website to meet accessibility guidelines. In 2007, the DOJ added further recommendations and by 2010, published an Advanced Notice of Proposed Rule Making. This notice provided that the DOJ was considering revising regulations to “establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically as placed on the World Wide Web, accessible to individuals with disabilities.” While guidelines were not issued at the end of 2015, as predicted, in November 2015, the DOJ announced its intention to issue official guidelines for government websites in 2017 and private business websites in 2018.
The combination of DOJ’s transactions and the lack of clear guidance in the ADA itself has led to inconsistency among courts. The First, Third and Seventh Circuits, have held that ADA provisions do apply to websites and have penalized non-compliant businesses. The Sixth, Ninth and Eleventh Circuits, have held that the ADA did not apply to websites or “there was no nexus between a business’ website and accommodations applicable to a business’ physical location.” Some circuits, including the Fourth, have not yet addressed the issue. Retailers have been the target of a majority of these lawsuits, but that does not mean other industries should not move toward compliance.
Lawsuits were brought against Harvard University and the Massachusetts Institute of Technology (MIT) alleging that the schools discriminated against deaf and hard of hearing people by failing to caption online content. Both universities filed a motion to stay their suit until the DOJ issued promised regulations. The DOJ involved themselves by filing statements of interest supporting the plaintiffs, but the universities’ motions were denied.
During the LMA meeting we discussed how this issue can effect law firms. There is a risk of potential lawsuits against their clients, as well as, directly against firms for their own websites. The CLE presentation provided information on how to test your website, along with other steps that can be taken towards accessibility. ADA website compliance is not a new issue, and if your website is not accessible you may be at risk for a potential lawsuit.
Doriyon Glass is a second year law student at Wake Forest University School of Law. Before law school she studied Legal Studies and Criminal Justice at Gannon University in Erie, Pennsylvania.