Website Accessibility By Disabled Persons
The Americans With Disabilities Act (“ADA”) protects the rights of disabled persons to equal access to public accommodations and facilities. When the ADA was enacted in 1990, commercial websites did not exist. Now, of course, websites are an important, even vital, method of marketing products and services, and courts throughout the nation are wrestling with the question of whether the ADA applies to website accessibility. In other words, does the owner of a business that has a website have a legal obligation to make that website fully accessible to people with vision or hearing impairments or other disabilities that would make use of the website difficult or impossible?
A recent California appellate court case illustrates the difficulties courts have had trying to answer that question. Abelardo Martinez is permanently blind and requires screen reading software to vocalize visual information on the computer screen, allowing him to “read” website content and access the Internet. He sued the San Diego County Credit Union under the California Unruh Civil Rights Act, claiming its website is incompatible with his screen reading software, in violation of the ADA.
Title III of the ADA prohibits discrimination by private entities against disabled individuals. The ADA provides: “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.”
As one court has put it, the purpose of the ADA is “to bring individuals with disabilities into the economic and social mainstream of American life . . . in a clear, balanced, and reasonable manner. Congress intended that people with disabilities have equal access to the array of goods and services offered by private establishments and made available to those who do not have disabilities.”
It is clear that the ADA guarantees accessibility to places of public accommodation. But what about virtual locations, such as websites? On this question, courts have split.
The minority view, adopted by federal courts in New York, Massachusetts, and Illinois, among others, is that websites are “public accommodations” within the meaning of the ADA. These courts reason that although the ADA specifically enumerates examples of actual physical locations, such as restaurants and restrooms, it would be contrary to the intent of Congress in enacting the ADA not to adapt to the changing economic realities brought about by the Internet. As one court stated: “[i]t would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.”
The majority of federal courts, including those in California, have taken the more literal view of the ADA language and held that a website itself is not a place of public accommodation. These courts, however, have also allowed a disabled plaintiff to state a viable ADA claim for alleged unequal access to a commercial website if there is a sufficient nexus between the claimed barriers and the plaintiff’s ability to use or enjoy the goods and services offered at the defendant’s physical facilities. As the court in the Martinez case noted, “a website can be important to providing access to a defendant’s physical premises and to a disabled person’s ability to use and enjoy services provided at those places, and thus to the extent barriers on the website impinges on the plaintiff’s ability to access such benefits at a physical premises, the claim can be actionable under a nexus theory.”
Importantly, the defendant must have some physical location accessible to the public. The website of an enterprise that only provides goods or services virtually would not be covered under the ADA because there would be no nexus to a brick and mortar facility.
The first decision by a California appellate court on the ADA website-coverage issue was issued last year. In that case (the “Thurston” case), a blind woman sued a restaurant for disability discrimination under the Unruh Civil Rights Act for maintaining a website that was incompatible with her screen reading software. The court approved the “nexus” standard adopted by federal courts in California and found for the plaintiff.
The recent Martinez decision also approved the nexus test. In the absence of guidance from the California Supreme Court or the U.S. Supreme Court, the nexus standard is likely to continue to be the applicable principle in California. Under this standard, plaintiffs will have to plead and prove a connection between access to the website and ability to use a physical location. So, for example, in one case the Ninth Circuit allowed a case to proceed against Domino’s Pizza based on allegations that Domino’s website (and related app) permitted the customer to find the location of the nearest restaurant and is the primary means of ordering pizzas to be picked up at or delivered from Domino’s restaurants.
Similarly, in Thurston, the court found the nexus test was satisfied by facts showing the restaurant’s website provided consumers with the opportunity to review the menu and make a reservation, which the court found expedited the customer’s ability to obtain the benefits of the restaurant’s physical facility.
As a practical matter, it should be easy for a disabled plaintiff to meet the nexus test. It is difficult to imagine a commercial website that is not designed to assist the customer in accessing a business’s physical locations.
The nexus standard answers the question of whether access by disabled persons to a commercial website is protected by the ADA. But that is only the threshold inquiry. To prevail, a plaintiff will then have to prove that any claimed deficiencies in the website violate the ADA. A court will look at such issues as whether the website complies with guidance published by the U.S. Department of Justice in interpreting the ADA and at industry standards or best practices suggested by the Web Content Accessibility Guidelines published by the Worldwide Web Consortium.
In light of this, any business with physical locations accessible to the public should review its website accessibility. Outside technical consultants may be needed to assist in this effort. This makes sense not just to avoid legal liability but also to ensure that the business is reaching as many potential customers as possible.