Law

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The federal civil rights law that mandates accessibility is the Americans with Disabilities Act (ADA). Because this act was signed into law in 1990, it does not contemplate modern digital technology.

However, the Department of Justice’s stance is that the ADA does apply to websites and mobile apps. The relevant sections of the ADA are § 12182(a) and § 12182 (b)(2)(A)(iii).

As a general rule, Sec. 12182 (a) states, Prohibition of discrimination by public accommodations under Title III of the ADA:

No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.ADA.gov

Section. 12182 (b)(2)(A)(iii) also states:

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;ADA.gov

This subsection leads to the Code of Federal Regulations (CFR) effective communication requirement under 28 CFR § 36.303(c)(1):

A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.eCFR.gov

Generally, these sections require:

  1. places of public accommodation do not discriminate against people of disabilities
  2. places of public accommodation furnish auxiliary aids and services to ensure effective communication

Thus, a website could either be considered the place of public accommodation itself, or it could be viewed as an auxiliary aid necessary for ensuring effective communication.

If a court were to interpret the ADA to apply to a website in either circumstance, a website owner could potentially be found in violation of the ADA.

As noted previously, although neither this excerpt nor any other part of the ADA explicitly mandates the accessibility of modern digital technology, nor specifies guidelines for making such technology compliant, the Department of Justice (DOJ) has adopted the stance that the ADA does indeed apply to websites.

Who is Required to Make Their Website ADA Compliant?

As the language clearly indicates, Title III of the Americans with Disabilities Act applies to places of public accommodation. But what is a place of public accommodation?

Section 12181. Definitions provides 12 categories with several examples of places of public accommodation.

(7) Public accommodation

The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.ADA.gov

Clearly many types of establishments can constitute a place of public accommodation under the Americans with Disabilities Act.

In practice, we have seen litigation take place in a number of industries, with online-only operations and websites connected to a physical, brick and mortar store:

  • breweries
  • art galleries
  • dentist offices
  • bicycle shops
  • restaurants
  • clothing retailers
  • fashion stores
  • sporting goods
  • cryptocurrency
  • cannabis dispensaries

Ecommerce stores have faced the most lawsuits and demand letters.

Who is Exempt From Making Their Website ADA Compliant?

One common misconception is that small businesses with less than 15 employees are exempt from ADA compliance. This originates from the 15 employees or more threshold from Title I of the ADA but does not apply to Title III.

The two exemptions outlined under Title III are religious organizations such as churches and private clubs.

Note that merely charging membership/annual fees does not automatically mean the business is exempt under the private club exemption.

Further, non-profits are also not exempt from ADA compliance.

For more information on who the Americans with Disabilities Act applies to, read the Businesses That Are Open to the Public resource on ADA.gov.