Limiting Title III Liability for Website Accessibility

Carlton Hilson , Gabriell Jeffreys

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December 1, 2021

A grey computer keyboard with one key colored blue with the symbol for handicapped on it.

Businesses that operate brick-and-mortar storefronts are likely well aware of Title III of the Americans with Disabilities Act and its prohibition of discrimination on the basis of disability in places of public accommodation. Most know that there are certain rules and regulations businesses must follow to make their physical locations accessible and avoid potential lawsuits. However, businesses may not know that ADA Title III liability risk does not just apply to physical locations—it extends to a company’s websites and mobile apps too.

Discrimination Claims Over Website Accessibility

ADA Title III states “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.” It details 12 types of locations that are considered applicable places of public accommodation. Because all 12 are physical places such as restaurants and retail stores, it may surprise some when they receive a demand letter or are served with a lawsuit related to the accessibility of their website or mobile app. However, that is happening to many business owners across the country with increasing frequency.

Federal courts have seen a wave of ADA Title III lawsuits over the past five years, with website accessibility claims posing some of the most dramatic growth. The increase in cases filed in the federal courts does not even demonstrate the true prevalence of these claims as most settle before suits are filed.

The typical progression of an ADA Title III website accessibility claim begins with a demand letter to a business. This demand letter is generally sent on behalf of an individual with a visual or hearing impairment or other disability who alleges they are unable to use the company’s website because it is incompatible with accessibility aids and therefore violates the law.

Many ADA Title III claims do not progress past this point because the business and the claimant reach a settlement outside of court. Settlements often involve the business offering to make certain changes to the website and to pay the claimant a sum of money in exchange for their agreement to not pursue their claims in court. If the parties are unable or unwilling to reach an agreement, however, the claimant may file suit.

Accessibility Lawsuits in the Courts

Among the website accessibility lawsuits that have gone to court there has been a circuit split on the question of whether websites are considered a place of public accommodation for purposes of ADA Title III. On one end is the Eleventh Circuit Court of Appeals, which recently held in Gil v. Winn-Dixie Stores, Inc. that websites are not places of public accommodation as contemplated by the ADA. The First Circuit falls at the opposite end of the spectrum. In National Association of the Deaf v. Netflix, the Massachusetts district court was one of the first courts to hold that Title III of the ADA applies to websites. Thus, a company’s level of risk may vary depending on its location and where the suit is filed.

Businesses located in the Eleventh Circuit and other similar circuits should not breathe a sigh of relief just yet. The fact that a business is physically located or headquartered in one state does not always prevent it from being taken to court in another. For example, consider a business that is physically located in Georgia but maintains a website that offers nationwide shipping. If a visually impaired individual in Massachusetts visits the site and is unable to make a purchase because it is incompatible with screen reader software, they may be permitted to file suit against the business in a Massachusetts district court. Thus, businesses may be forced to litigate in states where they have no physical presence but still face liability under local standards.

Steps to Mitigate Risk

Given the increasing prevalence of website accessibility lawsuits and the uncertainty of the law, businesses should take steps to avoid potential liability and litigation. To help mitigate the risk, businesses should:

1. Be proactive. The best way to avoid ADA Title III website accessibility liability is to be proactive and ensure that your website complies with applicable guidelines. While there are currently no governing laws or regulations concerning accessibility standards for websites, the Web Content Accessibility Guidelines (WCAG) are widely considered an acceptable standard. The WCAG outlines steps that websites can take to be perceivable, operable, understandable and robust so that individuals with disabilities can access and use a site. There are three levels of WCAG compliance: A, AA and AAA. Businesses may want to engage a consultant familiar with the WCAG guidelines to audit their website and ensure compliance.

2. Stay current. Even if your business designs a website that is fully compliant with applicable accessibility guidelines at the time the site is launched, it is important to continually monitor the website and regularly test accessibility. Most websites are frequently updated to include new content, promotions or products. It is important to ensure these changes do not inhibit accessibility and create new ADA Title III risk. In addition to monitoring website changes, businesses should also stay current on any legal developments concerning website accessibility or updated guidelines.

3. Know when to ask for help. Even businesses that strive to comply sometimes receive demand letters or face lawsuits claiming that their website or mobile app is not accessible. The law regarding ADA Title III website accessibility is continually evolving and remains uncertain. Therefore, it is important to seek out legal counsel with experience in this area for guidance on how to best respond.

Carlton Hilson is a partner at Burr & Forman and represents employers in a wide range of workplace issues, including matters involving Title III of the Americans with Disabilities Act.
Gabriell Jeffreys is an attorney at Burr & Forman and practices in the firm’s labor and employment practice group. 

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