Food and beverage industry, if you haven’t already, now is the time to review your websites.  I have noticed an uptick in litigation against businesses for allegedly not having an Americans with Disabilities Act (ADA) compliant website.  Even though the ADA does not expressly mention websites, nor is there any legally established standard (yet) about what is a compliant website, the courts have interpreted the ADA to extend to websites.  However, what is known is that covered businesses must provide an accessible website that accommodates disabled users.

So, what’s a covered business?

Generally speaking, businesses falling under Title I of the ADA (i.e., companies operating 20+ weeks per year with 15+ full-time employees) or those that fall under the “public accommodation” category of Title III of the ADA (e.g., hotels, banks, public transportation, etc.) constitute covered businesses.  However, when it comes to websites, the courts are split regarding Title III’s definition of “public accommodations,” and in particular, whether that definition is limited to physical spaces.

Courts within the First, Second, and Seventh Circuit Courts of Appeals have found that a website can be a place of public accommodation independent of any connection to a physical space.  Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012); Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017); Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999).

On the other hand, courts within the Third, Sixth, Ninth, and Eleventh Circuits have held that places of public accommodation must be physical places, but that goods and services provided by businesses within this category by and through their websites may fall within the ADA if the websites have a sufficient nexus to a physical location.  Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1349 (S.D. Fla. 2017); Haynes v. Dunkin’ Donuts LLC, 2018 WL 3634720, at *2 (11th Cir. July 31, 2018); Robles v. Domino’s Pizza, LLC, No. 17-55504, 2019 WL 190134, at *4 (9th Cir. Jan. 15, 2019) (“This nexus between Domino’s website and app and physical restaurants…is critical to our analysis.”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997)).

Regardless of the legal differences among the circuit courts, my recommendation is to get in compliance without delay.  Voluntary compliance in keeping with the spirit of the law (i.e., providing access) can help you avoid costly litigation later on and it’s smart business.  Indeed, why wouldn’t you want more consumers being able to access your website?

Okay – so how do you comply?

As I mentioned above, there is a regulatory gap here.  However, the Web Content Accessibility Guidelines (“WCAG”) established by the World Wide Web Consortium is a private set of guidelines that set forth methods to improve the accessibility of a website or mobile app.  You may have heard of them, but if not, you can find more information about WCAG online.  At least one court has ordered a business to comply with the WCAG 2.0 Guidelines.  See Gil v. Winn-Dixie Stores, Inc., supra, 257 F. Supp. 3d at 1349.  (Although, the trial court ruling in Gil is up on appeal.)  Even so, businesses would probably be wise to determine whether their websites and mobile apps adhere to the most recent WCAG Guidelines 2.1 Level AA success criteria.  It’s likely cheaper to follow those guidelines than fight off an ADA compliance lawsuit.

Additionally, there are third party consultants who conduct ADA compliance audits for websites.  The consultant will likely follow WCAG guidance.  Some common fixes that a consultant might recommend include, but are not limited to:

• Creating alt tags for all images, videos and audio files to allow users with disabilities to read or hear alternative descriptions of content they might not otherwise be able to view. Alt tags describe the object itself and, generally, the purpose it serves on the site.
• Creating text transcripts for video and audio content.
• Specifying what language the site should be read in and coding accordingly. Text readers utilized by blind individuals identify those codes, which allows the readers to function properly.
• If a disabled user encounters input errors because of his/her need to navigate the website differently, the site should automatically offer recommendations to the user as to how to better navigate toward the content they need.
• Menus, links and buttons should be organized in such a way that they are clearly delineated from one another and are easily navigated throughout the entire site.

Remember, the ADA is intended to ensure that disabled persons are not discriminated against in accessing the places that non-disabled persons frequent without impediment.  Even so, ADA website compliance can be a potentially confusing undertaking.  Thus, consultation with industry experts and your legal team is a must to ensure that you get a more navigable and legally compliant website.