Contributed by Nickolas Ekonomides, P.A.
Did you know your website is a public accommodation that must be accessible to the disabled? The use of braile on bathroom and similar signs in public is certainly nothing new. While many expect wheelchair accessible parking spaces and bathrooms in brick and mortar businesses, we sometimes don’t realize that websites must accommodate those who are blind and deaf.
Website and mobile application accessibility is required under Title III of the Americans with Disabilities Act ("ADA"). The ADA predates widespread use of the internet and thus courts across the US lack consistency in their interpretations of the law. On the other hand, the U.S. Department of Justice ("DOJ") is clear in its interpretation that all websites must comply.
What The Courts Say
The Federal Circuits follow two approaches. The first approach limits lawsuits to online “places of public accommodation” of businesses that maintain a physical presence related to the use or purchase of their products and services. For example, the eBay website would not be a place of public accommodation but the Walmart website would be. Therefore, the Walmart website would have to comply. So might the websites of colleges and universities. Federal Circuits that agree there must be a connection between the goods and services offered online and a physical location are the Third (New Jersey, Pennsylvania), Sixth (Louisiana, Mississippi, Texas), Ninth (Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, California, Washington), and Eleventh Circuit (Alabama, Florida, and Georgia).
The second approach essentially removes any such “nexus” requirement to liability. That means if you have a customer that wishes to use your online only service, you are responsible to remove accessibility barriers (screen reader software compatibility for example in the case of the blind). This approach is followed in the First (Maine, Massachusetts, New Hampshire, Rhode Island), Second (Connecticut, Vermont, New York), and Seventh (Illinois, Indiana, Wisconsin) Circuits.
What Should You Do If You Are Sued?
If your business is in Florida and online only, but a resident of New York uses your site, can you be sued there? Would a court in Boston have jurisdiction over your business? It depends on your level of activity in that state. While jurisdiction is outside the scope of this article, consider whether you are willing to spend attorney’s fees to fight the issue or whether you might want to update your website anyway. Commercial litigation can be both expensive and time consuming.
Note that “winning” such a suit brought against you may help in establishing your ultimate responsibilities giving you time to make feasible changes to your website, but you still are not entitled to your attorney’s fees. The ADA was drafted such that the disabled plaintiff is entitled to attorney’s fees from you if he or she prevails, but you are not entitled to attorney’s fees if you prevail. Updating your website will most likely be required by the court so a private settlement with the plaintiff that allows you time to do so is often the best course.
What Are The Standards To Be Satisfied?
Updating your website makes sense from another perspective as well since the position of the DOJ is that all websites are covered. They have been expected to come out with new guidelines consistent with such for some time. In all likelihood, the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG), Level AA, will be adopted by the DOJ in its ADA regulations.
While the President’s executive order requiring two regulations be removed for every new regulation implemented may slow the rule making process, it will likely not stop the DOJ from synthesizing duplicative regulations and reissuing new regulations. Therefore, relying on more favorable laws in states like Florida is risky.
As technology advances, so does the ability to accommodate those with disabilities more efficiently. If you are sued before you complete changes to your website, you should defend the matter as best you can working with the plaintiff to make changes required.
Nickolas C. Ekonomides (www.eko-law.com) is Clearwater Attorney practicing law in the Tampa Florida area since 1994. He offers representation in commercial real estate transactions, business transactions, and commercial litigation. Mr. Ekonomides is admitted to practice in all Florida state courts, the Middle District federal court for Florida, and the United States Supreme Court.