by Benjamin S. Briggs and Cynthia Sass
Some are calling the new wave of cases challenging the accessibility of commercial and public websites and mobile applications (apps) the new civil rights movement. The authors like to call it the silent civil rights movement, as most practitioners are unaware that their websites and apps — as well as those of their clients — may violate the ADA. In particular, the websites and apps (collectively referred to as “web technologies” in this article) of law firms and their private sector clients may violate Title III of the ADA, which is the focus of this article.
Background: Disabilities Affecting Internet Use and the Legal Implications
According to the U.S. Department of Justice (DOJ), millions of individuals in the United States have disabilities that affect their use of web technologies.1 For instance, individuals with vision impairments may be unable to read the text or view images or videos displayed on web technologies; those with hearing impairments may be unable to obtain information from videos lacking captions; those with mobility impairments regarding their hands may be unable to navigate a web technology; and those with intellectual impairments may struggle to use portions of web technologies that require timed responses from users. Many people with disabilities rely on “assistive technology” to navigate web technologies and access the information and services provided therein. For example, a screen reader can convert the visual information on a web technology into speech (i.e., speak aloud the written text), and speech-recognition software can allow those with mobility impairments to navigate web technologies. However, many web technologies are not designed in a manner that is compatible with assistive technology or are otherwise inaccessible to individuals with disabilities.
Multiple federal and state laws may be implicated when web technologies are not equally accessible to disabled individuals. Most prominent among the federal laws are the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101-12213 (ADA), and the Rehabilitation Act of 1973, 29 U.S.C. §701, et seq. (Rehab Act). The ADA prohibits discrimination against individuals with disabilities2 in all areas of public life, including employment, education, transportation, and all public and private places that are open to the general public.3 Title I of the ADA prohibits disability discrimination in the realm of employment, while Titles II and III of the ADA govern accessibility standards and protect disabled individuals’ access to facilities, goods, services, privileges, etc.4 Title II applies to state and local government entities and agencies, whereas Title III applies to private entities that are places of public accommodation. The Rehab Act requires that the web technologies of federal government entities, federal contractors, and recipients (public and private) of federal funding be equally accessible to disabled individuals.5
This article focuses on the web technologies of private sector businesses under Title III of the ADA. However, it is worth noting that a disabled job applicant may possibly have a Title I employment discrimination claim against a prospective employer that utilizes an inaccessible website to advertise employment opportunities and receive application materials, and an employer that requires disabled employees to use inaccessible internal digital technologies to perform their jobs may also be liable under Title I;6 and any governmental entity (local, state, or federal) or recipient of federal funding may be liable under Title II of the ADA and/or the Rehab Act for inaccessible web technologies.7
General Overview of Title III of the ADA
Title III applies to any private entity that is considered a “place of public accommodation.” Private entities are considered places of public accommodation under Title III if their operations affect commerce8 and fall within at least one of the following 12 categories:
“(A) An inn, hotel, motel, or other place of lodging;
(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 or 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, drycleaner, 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; or
(L) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.”9
Although this is an exhaustive list of the categories of places of public accommodation, the representative examples within each category are not exhaustive.10 Moreover, the 12 categories “should be construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the nondisabled.”11
Title III broadly prohibits disability discrimination with regard to places of public accommodations: “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.”12
Title III’s Application to Web Technologies
There are two prominent lines of decisions addressing web technology accessibility under Title III: 1) Courts holding that places of public accommodation are limited to physical locations and that Title III requires a nexus between an actual physical structure and the goods, services, or privileges provided via web technologies; and 2) courts holding that places of public accommodation are not limited to physical locations and, thus, there need not be any nexus to a physical structure.
Federal courts in at least the Third, Sixth, Ninth, and 11th circuits have adopted the nexus theory in the first line of decisions. Under this first line of cases, which limits “places of public accommodation” to actual physical locations, a website is not itself a place of public accommodation. However, under the nexus theory, Title III may nonetheless apply to web technologies if there is a nexus between the services, goods, and privileges they provide and an actual physical place of public accommodation. Significantly, this line of decisions dictates that Title III does not cover web-only businesses, which lack any actual physical place of public accommodation. For instance, the first line of cases makes a distinction between Target — a retail company with a physical place of accommodation as well as a website — and eBay, which has no physical location providing goods, services, or privileges to the public.
In National Federation for the Blind v. Target, Inc., 452 F. Supp. 2d 946 (N.D. Cal. 2006), a class of visually impaired plaintiffs alleged that they could not access Target’s website to purchase products, redeem gift cards, or find Target stores. The court held that places of public accommodation under Title III are limited to physical places, but rejected Target’s argument that the ADA prohibits “only discrimination occurring on the premises of a place of public accommodation.”13 The court held that Title III “applies to the services of a place of public accommodation, not services in a place of public accommodation.”14 The court denied Target’s motion to dismiss, finding that the complaint stated a Title III claim because there was a sufficient nexus between the website’s goods and services and those provided at the actual bricks-and-mortar Target stores.15 In contrast, the same district court dismissed Title III claims against web-only companies, such as Facebook, Netflix, and eBay, because there was no nexus between the respective website goods and services and an actual physical place of accommodation.16
These decisions are consistent with 11th Circuit precedent, which also adopts the nexus theory. In Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279 (11th Cir. 2002), the 11th Circuit held that the telephone process for selecting contestants for “Who Wants to be a Millionaire” discriminated against people with hearing and hand-mobility impairments in violation of Title III.17 The show selected contestants by utilizing an automated fast-finger telephone answering system whereby potential contestants would answer questions.18 The court found that the physical studio where the show was filmed was a place of public accommodation and that competing on the show was a privilege provided by the place of public accommodation.19 Thus, by using a discriminatory telephonic process for screening potential contestants, defendant was denying disabled persons equal enjoyment of a privilege (competing on the show) of a place of public accommodation (the studio).20 The court held that the plaintiffs stated a claim under Title III because they demonstrated “a nexus between the challenged service and the premises of the public accommodation.”21
In Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), the plaintiffs alleged that Southwest offered goods and services on its website that were inaccessible to blind people in violation of Title III of the ADA.22 The plaintiffs did not argue that Southwest’s website denied them access to actual aircrafts, which are exempted from Title III; rather, they claimed the website denied access to “Southwest’s virtual ticket counter.”23 The court dismissed the case, finding that southwest.com and its virtual ticket counter was not a place of public accommodation and there was no nexus between the website’s goods and services and a physical place of public accommodation.24 Specifically, “because the Internet website, southwest.com, does not exist in any particular geographical location, [p]laintiffs are unable to demonstrate that Southwest’s website impedes their access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency.”25 The court distinguished its holding from that in Rendon because Rendon involved a nexus to a specific physical place of public accommodation, whereas southwest.com was not a physical location nor a means to accessing a specific physical location.26
However, federal courts in at least the First, Second, and Seventh circuits have declined to limit “places of public accommodation” to actual physical places under Title III of the ADA. Under this line of cases, web-only businesses like eBay may be places of public accommodation covered by Title III. For instance, in National Ass’n of the Deaf v. Netflix, 869 F. Supp. 2d 196 (D. Mass. 2012), the court held that Netflix’s watch-instantly video streaming website was a place of public accommodation and Netflix may not discriminate in the provision of its web-based services — even if those services are only accessed in private residences.27
Similarly, in National Federation for the Blind v. Scribd, 97 F. Supp. 3d 565 (D. Vt. 2015), the Second Circuit held that “a website with no physical retail outlet or building open to the public,” but that nevertheless provides goods or services to the public, can be a place of public accommodation under Title III.28 Scribd allows subscribers to read ebooks from its digital library for a monthly fee.29 The plaintiffs alleged that “because Scribd’s website and apps are not programmed to be accessible through [screen reader] software, Scribd is denying blind persons access” to the services and privileges that Scribd offers the general public.30 Scribd moved to dismiss on the basis that Title III does not apply to a web-only business because a place of public accommodation must have a physical place where it offers its goods and services to the public.31 The court denied Scribd’s motion and found that Scribd’s services fall within at least one of Title III’s enumerated categories of public accommodations.32
In light of the current split in case law, the extent to which Title III of the ADA applies to web technologies depends in no small part on where the plaintiff brings the claim. Law firms and businesses with a broad geographic presence may face a patchwork of liability based on where a plaintiff is located. By way of example, Netflix and its exclusively internet-based business found itself on both sides of the split in 2012. The U.S. District Court for Massachusetts ruled that Netflix’s video streaming website is a “place of public accommodation” covered under Title III, even though the website has no nexus to a physical location; conversely, later that same year, the U.S. District Court for the Northern District of California reached the opposite conclusion, finding that Netflix’s web-based services lacked the necessary nexus to an “actual physical place.”33
An interesting issue is whether websites of Florida law firms, and firms within other nexus theory jurisdictions, must comply with Title III. Title III specifically lists law offices as a place of public accommodation and requires law offices to provide full and equal services and privileges to disabled persons.34 Whether a firm’s inaccessible website violates Title III depends on the nexus between the website and the law office. A sufficient nexus may exist where the website is “heavily integrated with the brick-and-mortar” facility and “operates in many ways as a gateway to the” facility.35 For instance, there may be a sufficient nexus between a firm’s website and the services and privileges offered at its physical office where the website provides information regarding the office’s location and hours or allows someone to contact an attorney or schedule a consultation.36
Developments Regarding Title III Regulations
The legal uncertainty and divergent lines of Title III decisions regarding web technologies exists because neither the statutory language of the ADA nor the regulations the DOJ promulgated under Titles II and III of the ADA specifically address access to web technologies.37 The DOJ has taken steps to revise the ADA regulations and establish requirements for website accessibility under Titles II and III. In 2010, the DOJ issued an advance notice of proposed rulemaking (ANPR), stating that it was considering revising the regulations for Titles II and III to establish accessibility standards for the websites of public entities and public accommodations.38 The DOJ stated that the
“ADA’s promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today’s technologically advanced society only if it is clear to [s]tate and local governments, businesses, educators, and other public accommodations that their [w]eb sites must be accessible.”39
The DOJ further stated that, “There is no doubt that the [w]eb sites of state and local government entities are covered by title II of the ADA” and that it “has also repeatedly affirmed the application of title III to [w]eb sites of public accommodations.”40
After multiple delays, the DOJ announced that it would issue the proposed Title II website accessibility regulations in early 2016, and would use those regulations as a framework for the Title III website accessibility regulations, which it planned to issue in 2018. However, the DOJ recently announced that it now plans to issue the proposed Title II website accessibility regulations in July 2017, which presumably will further delay the issuance of the Title III website accessibility regulations.41
In the meantime, plaintiffs continue to file Title III claims in record numbers, particularly here in Florida. The past two years have seen the number of ADA Title III cases filed nationwide increase from 2,722 in 2013 to 4,789 in 2015;42 and law firms are reporting seeing a swell in Title III demand letters and lawsuits alleging inaccessible web technologies.43 Moreover, during each of the past three years, Florida has been the state with the second most Title III cases (behind California).44
Title III Liability and Remedies
A successful plaintiff under Title III is entitled to injunctive relief and reasonable attorneys’ fees and litigation expenses (including experts’ fees).45 Monetary damages are only available in an action brought by the attorney general in cases of general public importance or where a “pattern or practice” of discrimination is alleged.46 In order for a private plaintiff to have standing to bring a Title III access claim, he or she must not only allege a specific past incident of disability discrimination regarding access, but also show a sufficient likelihood that he or she will suffer such discrimination again in the near future.47 The threat of future discrimination must be “real and immediate — as opposed to a merely conjectural or hypothetical.”48 “Immediacy in this context is an elastic concept, and ‘means reasonably fixed and specific in time and not too far off.’”49 Moreover, a plaintiff’s status as an ADA “tester” who travels to businesses solely to evaluate ADA compliance, rather than a bona fide patron, does not deprive him or her of standing to sue for violations of Title III.50 In other words, a disabled individual’s right to access is not contingent on the motive behind his or her attempt to enjoy the goods, services, or facilities.51
Multiple entities or individuals may be simultaneously liable under Title III as the owner, lessee, or operator of a place of public accommodation.52 For example, if an office building contains a law office, both the owner of the building and the law office are required to comply with the ADA and may be liable under Title III.53 Moreover, while entities such as the law office and the building owner in the foregoing example may contract for an indemnification provision between themselves, neither entity is able to contract away liability under Title III. In other words, both entities remain fully liable for compliance with the ADA notwithstanding any indemnification agreement between the parties against losses caused by a failure to comply with the ADA.54
Tips for Improving Web Technology Accessibility and ADA Compliance
For starters, businesses and public entities should consider hiring a third-party digital consultant to conduct a thorough audit of their web technologies to determine what features might be insufficient and develop a plan for implementing necessary updates. Businesses should also review the compliance measures outlined in prominent DOJ settlements,55 such as developing a web technology accessibility policy, providing for regular accessibility testing for web technologies, and ensuring that the web technologies conform with the Web Content Accessibility Guidelines 2.0 (WCAG)56 or the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines 1.0 (BBC).57 Another measure to mitigate liability is for web technologies to have a mechanism by which individuals with disabilities may contact a help desk if they are having accessibility issues and be provided with means to achieve accessibility.58 Making a web technology accessible can be simple or complex, depending on many factors. However, it is easier to implement accessibility features if they are planned from the beginning of the web technology’s development or redesign. Thus, businesses should consider enacting policies that require accessibility to be a design consideration from the outset. Moreover, to the extent your firm or your clients contract with a third-party company to create, maintain, or host web technologies, your firm and your clients should require that third party to comply with the currently accepted accessibility standards.
1 75 Fed. Reg. 43462.
2 The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities,” such as seeing, hearing, performing manual tasks, and reading. 42 U.S.C. §12102(2)(A).
3 See PGA Tour, Inc. v. Martin, 532 U.S. 661, 666 (2001).
4 42 U.S.C. §§12111-12117; 42 U.S.C. §§12131-12165; 12181-12189.
5 29 U.S.C. §§701, 794, 794d.
6 See, e.g., United States v. Florida State University, No. 205-17-13 (settled on June 5, 2014) (Title I action alleging university’s police department’s online application form discriminated against disabled applicants; settlement required the police department’s web technologies to be accessible to disabled individuals).
7 42 U.S.C. §§12132, 12133; 29 U.S.C. §§794, 794a.
8 Under Title III, “[t]he term ‘commerce’ means travel, trade, traffic, commerce, transportation, or communication (A) among the several [s]tates; (B) between any foreign country…and any [s]tate; or (C) between points in the same [s]tate but through another [s]tate or foreign country.” 42 U.S.C. §12181(1).
9 42 U.S.C. §12181(7) (emphasis added).
10 Nondiscrimination on the Basis of Disability by Public Accommodations, 28 C.F.R., Part 36, app. B (originally published July 26, 1991); Florida Paraplegic, Ass’n, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1128 (11th Cir. 1999); National Ass’n of the Deaf v. Netflix, 869 F. Supp. 2d 196, 201 (D. Mass. 2012).
11 Martin, 532 U.S. at 666-677 (internal quotation marks omitted).
12 42 U.S.C. §12182(a) (emphasis added).
13 Target, Inc., 452 F. Supp. 2d at 952-953.
14 Id. at 953, 955.
15 Id. at 954-955.
16 Earll v. eBay Inc., No. 5:11-CV-00262-EJD, 2012 WL 6652444 at *1 (N.D. Cal. Dec. 20, 2012), aff’d, 599 Fed. Appx. 695 (9th Cir. 2015) (Ninth Circuit affirmed dismissal of Title III claim because “eBay’s services are not connected to any ‘actual, physical place.’”); Cullen v. Netflix, 880 F. Supp. 2d 1017, 1023-1024 (N.D. Cal. 2012) (the ADA did not apply to Netflix’s web-only services because they had no nexus to a physical place of public accommodation); Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011) (“Facebook operates only in cyberspace, and thus is not a ‘place of public accommodation’ as construed by the Ninth Circuit.”).
17 Rendon, 294 F.3d at 1280-1281.
19 Id. at 1283-84.
20 Id. at 1284-85.
21 Id. at 1284, n. 8.
22 Access Now, 227 F. Supp. 2d at 1313, 1316.
23 Id. at 1321, n. 12 (citing 42 U.S.C. §12181(10)).
24 Id. at 1318-19, 1321.
25 Id. at 1321.
27 National Ass’n of the Deaf, 869 F. Supp. 2d at 200-201.
28 Scribd, 97 F. Supp. 3d at 571-576.
29 Id. at 567.
31 Id. at 567-568.
32 Id. at 576.
33 Cullen, 880 F. Supp. 2d at 1023-1024; National Ass’n of the Deaf, 869 F. Supp. 2d at 200-201.
34 42 U.S.C. §§1281(7)(F), 1282(a).
35 Target, Inc., 452 F. Supp. 2d at 954-955.
36 See, e.g., id. at 949, 954-955 (finding website services, including access to information regarding store locations and hours, were sufficiently connected to the services of the physical store).
37 75 Fed. Reg. 43463. The U.S. Equal Employment Opportunity Commission (EEOC) regulates and enforces Title I of the ADA, while the DOJ regulates and enforces Titles II and III.
38 75 Fed. Reg. 43460, 43462.
39 75 Fed. Reg. 43462.
40 75 Fed. Reg. 43464 (citing 28 CFR §35.102).
41 The DOJ published a Title II Supplemental Advance Notice of Proposed Rulemaking seeking public comment through Aug. 8, 2016, available at https://www.ada.gov/regs2016/sanprm.html.
42 Minh Vu, et al., ADA Title III Lawsuits Continue to Rise, Seyfarth Shaw LLP (Jan. 15, 2016), available at http://www.adatitleiii.com/2016/01/ada-title-iii-lawsuits-continue-to-rise-8-increase-in-2015/.
43 Kristina M. Launey, et al., Website Accessibility Lawsuits by the Numbers, Seyfarth Shaw LLP (Mar. 14, 2016), available at http://www.adatitleiii.com/2016/03/tracking-the-trends-website-accessibility-lawsuits-by-the-numbers/.
45 42 U.S.C. §12188(a); 42 U.S.C. §2000a-3; 42 U.S.C. §12205; 28 C.F.R. §§36.501(a) and (b); C.F.R. §36.505.
46 42 U.S.C. §12188(b)(2)(B); see, e.g., Powell v. National Bd. of Medical Examiners, 364 F.3d 79, 86 (2d Cir. 2004); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002).
47 Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013); New v. Lucky Brand Dungarees Stores, Inc., 51 F. Supp. 3d 1284, 1285 (S.D. Fla. 2014).
48 Houston, 733 F.3d at 1328 (quoting Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)).
49 New, 51 F. Supp. 3d at 1285 (quoting Houston, 733 F.3d at 1339-1340).
50 Houston, 733 F.3d at 1332-34, 1336; Payne v. Gulfstream Goodwill Indust., Inc., No. 15-cv-81120-BLOOM, 2015 WL 6123529 at *4 (S.D. Fla. Oct. 19, 2015); De Palo v. Walker Ford Co., Inc., No. 8:15-cv-169-T-27AEP, 2015 WL 4506890 at *2 (M.D. Fla. July 23, 2015). Some question whether the Supreme Court’s recent holding in Spokeo, Inc. v. Robins, __ U.S. __ (May 16, 2016) (Fair Credit Reporting Act case) may limit the standing of ADA testers. However, the Spokeo plaintiffs’ standing was undermined because the alleged violation of the FCRA’s procedural requirements could possibly result in no harm to the plaintiffs; whereas the 11th Circuit has held that an injury-in-fact exists whenever a disabled person is denied full access on the basis of his or her disability. Houston, 733 F.3d at 1332; De Palo, 2015 WL 4506890 at *2.
52 Botosan v. Paul McNally Realty, 216 F.3d 827, 832-834 (9th Cir. 2000); Howard v. Cherry Hills Cutters, Inc., 979 F. Supp. 1307, 1309 (D. Colo. 1997).
53 Botosan, 216 F.3d at 832; Howard, 979 F. Supp. at 1309 n. 1.
54 Botosan, 216 F.3d at 832-834; Connors v. Orlando Regl. Healthcare System, Inc., No. 6:08CV206-ORL35-DAB, 2009 WL 2524568 at *2 (M.D. Fla. June 12, 2009).
55 E.g., United States v. Carnival Corp., DJ No. 20217M206 (July 23, 2015); United States v. Peapod, LLC, DJ 202-63-169 (Nov. 10, 2014); NFB, et al. v. HRB Digital LLC and HRB Tax Group Inc., No. 1:13-cv-10799-GAO (D. Mass. Apr. 2013).
56 The WCAG standards are likely to be incorporated into proposed ADA regulations at some point. See DOJ’s 2010 ANPR, 75 Fed. Reg. 43460.
57 Like most Title III web technology settlement agreements, Netflix’s April 27, 2016, settlement with the American Council of the Blind adopted the WCAG 2.0 as the accessibility standard for Netflix’s website. However, instead of using the WCAG 2.0 as the standard for Netflix’s apps, the agreement adopted the BBC standard for apps. This departs from the DOJ’s typical practice of using the WCAG as the accessibility standard for apps. American Council of the Blind v. Netflix, Inc. (Apr. 27, 2016).
58 However, private sector businesses may still be liable under Title III if the help desk is not available certain days of the year or certain hours of the day, as this would not provide disabled individuals with full and equal access.
Benjamin S. Briggs is a labor and employment attorney with the Law Offices of Cynthia N. Sass, P.A., in Tampa. He graduated with honors from Boston University School of Law. Briggs is a member of The Florida Bar Labor and Employment Law Section and the Florida Chapter of NELA.
Cynthia Sass is the sole shareholder of the Law Offices of Cynthia N. Sass, P.A., a six-attorney firm in Tampa, that represents employees in employment disputes. She graduated from the University of Richmond School of Law and is an active member of various labor and employment law committees.
This column is submitted on behalf of the Labor and Employment Law Section, Leslie Weiner Langbein, chair, and Robert Eschenfelder, editor.