Our retail and hospitality clients often ask whether the Americans with Disabilities Act (“ADA”) requires their websites to be accessible for individuals with disabilities. Unfortunately, as we have previously explained, there are numerous reasons why there is no clear answer to this question:
- While Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute does not explicitly define whether a place of public accommodation must be a physical place or facility;
- These types of issues historically have arisen in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms;
- No regulations on the issue of website accessibility currently exist, and the Department of Justice (“DOJ”) has pushed back the date on which it is supposed to issue such regulations until 2018 at the earliest;
- The DOJ has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”);
- Very few cases have reached a resolution on the merits.
As a result, the state of the law regarding the applicability of the ADA to company websites has been in flux the last several years. However, we now are starting to see some guidance from the courts, although there have been contrasting decisions that have not exactly clarified matters.