Lately there has been an uptick in litigation surrounding website compliance under the Americans with Disabilities Act (“ADA”).  These cases are coming to light in part because blind plaintiffs are suing website owners for better access to their online marketplaces.

People with sight disabilities have special tools that can read underlying code from websites out loud, enabling blind individuals to “see” what is on a webpage.  The underlying code, however, must exist and be properly written when the website is designed for these specialized readers to function effectively.

Businesses without proper underlying coding in their websites have found themselves defending ADA suits, however, there is a wrinkle in the language of 42 U.S.C.A. §12182.  Here, the ADA states that no individual shall be discriminated against in the enjoyment of goods, services, facilities, and/or accommodations of any place of public accommodation—but is a website a place?

Courts have struggled with this question with respect to television broadcasting and the extensions thereof.  Some have ruled that digital cable systems and their channel menus were not “places of public accommodation,” and therefore were not subject to the ADA, while another court ruled that a hotline with an automated fast-finger telephone quiz for contestant selection of a television game show was a “place of public accommodation” within the meaning of the ADA. Yet another court held that Netflix was not an actual physical place, and therefore could not be a “place of public accommodation” in response to a deaf plaintiff’s allegation of ADA violations.

With respect to blind individuals accessing websites, the courts are also split on whether such a non-physical place constitutes a “place of public accommodation” subject to ADA regulation.  The prevailing rule seems to turn on whether a business’s website supports an actual physical location, which seems to cut to the website needing to be ADA accessible, in contrast to the website standing alone without a physical storefront, which seems to cut to no requirement of ADA accessibility. This is not a settled rule, however, as courts have held that an airline’s website and Facebook were not “places of public accommodation,” but an online digital library without a brick and mortar location and Blue Apron’s grocery delivery website without a retail location were “places of public accommodation.”

The lack of consensus in the Circuit Courts concerning when a website must be accessible to disabled individuals has led to a lot of confusion for businesses trying to be ADA compliant. For now, the majority of cases seem to turn on the nexus to a physical location issue. So if the website accompanies a business with an actual physical location, the website should also be accessible to disabled individuals, whereas if the website is stand-alone and the business does not have an actual physical retail establishment, the website may not need to be accessible to disabled individuals under the ADA.  Without a Supreme Court ruling, however, deciding which Circuit’s cases provide the correct interpretation of the law, compliance will continue to be dependent on the controlling precedent in each plaintiff’s jurisdiction.  This makes it especially difficult for businesses with websites that reach the entire country, because what ADA website compliance entails differs from region to region.

This could prove to be extremely costly to some businesses because plaintiffs are suing for injunctions under 42 U.S.C.A. § 12188.  This portion of the ADA allows for injunctions which essentially court-order businesses to make their website facilities readily accessible to individuals with disabilities.  Sometimes the changes necessary to allow the website reader tools to work are very expensive, costing tens of thousands of dollars depending on the size and complexity of a business’s website.  Although granting permanent injunctions is rare, plaintiffs often seek preliminary injunctions before the litigation has played out, forcing the business to either immediately defend itself or adopt special operating procedures in the interim until the case is litigated.  There is also the potential for fines of $50,000 for first and $100,000 for subsequent violations under the ADA.  In addition, some states have enacted parallel statutes that allow for even more damage recovery for plaintiffs. Some statutes even provide that ADA violations are automatic violations of the state’s parallel laws.

This increased awareness and concern for ADA website compliance may result in one of these cases making its way to the Supreme Court.  This type of Circuit split sometimes prompts the Supreme Court to rule on an issue or prompts Congress to change the law, resulting in promulgation of regulations by the appropriate agencies.  As a business owner, this may be an area to consider, either ensuring your website is accessible to disabled individuals or beginning plans to achieve accessibility.