By: Lee Morehead – Published in the BizWest Thought Leaders column in September 2021
In January 2019, the Ninth Circuit Court of Appeals held that websites and mobile apps may qualify as “places of public accommodation” under the Americans with Disability Act. In that case, the Plaintiff was blind and the company’s website and mobile app was not compatible with screen reader software. The Plaintiff sued alleging that the company’s website and mobile app were “places of public accommodation” and therefore required to be equally accessible to the visually impaired.
Since then, there have been a wave of public accommodation lawsuits regarding company websites. In one case, an east coast resident sued a west coast hotel alleging its website was not equally accessible even though the east coast resident had no plans and had never been west of the Mississippi River. Most cases involve a website being incompatible with screen reader software or failing to have closed captioning for videos.
Defending a claim under the Americans with Disabilities Act regarding your website or app can be complicated. Courts across the country look at the issue differently. Some courts have yet to set the legal standard. In some parts of the country, most websites or apps must comply with the Americans with Disabilities Act. In other parts, only those websites or apps that access goods or services must comply. Where the Americans with Disability Act applies to your website, ensuring compliance can be uncertain. Courts have struggled and, in some cases, disagreed on what features a website must have to comply. The Department of Justice, which is responsible for issuing rules to implement the Americans with Disabilities Act, withdrew its notice to implement such rules in 2017.
Despite the current landscape of uncertainty, there have been emerging threads of guidance. For example, the Web Accessibility Initiative of the World Wide Web Consortium (W3C) and its Web Accessibility Guidelines (WCAG 2.0) are now available. Some states, such as California, have promulgated their own guidance to accessibility.
Despite the emerging threads, if you have questions about your company’s website, you should talk to an attorney experienced with the Americans with Disabilities Act.