Does the Americans with Disabilities Act Apply to Company Websites?

Last year, Winn-Dixie lost an ADA-compliance lawsuit ----    Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D.N.Y. 2017) ----   because blind individuals, who use screen readers to navigate websites, could not effectively use the supermarket chain's website. Winn-Dixie, which has appealed the ruling, is not a lone. In the last year, litigants have filed hundreds of website-accessibility lawsuits across the country. Hospitals, clinics, retailers, restaurants, credit unions, and universities have all been targeted.  

The ADA was enacted in 1990 to give people with disabilities equal access to employment opportunities, goods and services, and government programs and services. With respect to "public accommodations" ---- restaurants, movie theaters, schools, daycare facilities, recreational facilities, doctors' offices, and other   businesses that serve the public----   the statute's principal goal was to render physical sites accessible and navigable.  Consequently, the statute and its enforcement regulations provided elaborate guidelines on ramping, doorway sizes, clearances, counter-height requirements, and other standards applicable to brick-and-mortar locations. 

At the time of the ADA's passage, the internet was in its infancy, so the statute and regulations said nothing about whether and how the statute would apply in the digital age.  As technology advanced, however, the United States Department of Justice, which has enforcement authority over the ADA, recognized the statute's potential application beyond physical locations. In 2003, DOJ issued a document stating that the statute applied to state and local governments' websites. The publication referenced guidelines that would render websites accessible, but did not mandate compliance. In 2010, DOJ seemed to be picking up steam when it released a notice of rule-making regarding the accessibility of websites operated by both government agencies and private businesses. But the date for the regulations' release was pushed back several times and then, just last year, the Trump Administration placed the rule-making on ice.

Meanwhile, the federal courts reached conflicting conclusions on the issue. Courts in the Third, Sixth, Ninth, and Eleventh Circuits read the statute narrowly, holding that an establishment is a public accommodation under the ADA only if it has a physical structure and that, in order for the establishment's website to be subject to the ADA, the plaintiff must establish a "nexus" between the website and access to that structure. In contrast, courts in the First, Second, and Seventh Circuits have held that any website offering goods or services qualifies as a public accommodation subject to the ADA, even if the company does not have a physical presence.

The lack of regulations and inconsistency in the case law have served no one: Many websites remain non-compliant, leaving people with disabilities out in the cold; and most companies don't appreciate the ADA's application to their website until they receive a demand letter.

So what is a company to do in this nebulous legal landscape? L ook into getting ADA-compliant before you receive a demand letter, unless you are a website-only business located in a state within a jurisdiction that has definitively held the ADA inapplicable to companies that lack a physical location  and you do not sell goods or services out-of-state.  Even companies that currently lack a legal obligation to become ADA-compliant should consider making modifications, not only to improve access for individuals with disabilities but to avoid a mad scramble in the event DOJ revives its rule-making efforts.

Although the fix can be expensive, it's not rocket science: The guidelines to which DOJ's 2003 publication referred ----   the "Web Content Accessibility Guidelines 2.0" ("WCAG 2.0") ----   provide a straightforward set of rules to render a website ADA-compliant. The guidelines address the size of text, the use of contrast between foreground and background, the need for functions to be operable without a mouse (which blind people can't use because they can't see the cursor), and many other aspects of websites' appearance and functionality. These and other modifications render website  content accessible to individuals with blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, and photosensitivity. 

The guidelines describe various levels of access ( i.e. , AA, AAA); a website that is AAA compliant is accessible to the most people. WCAG 2.0 AA is the standard used in all DOJ settlement agreements and consent decrees about website and mobile apps. It is also the standard used for the federal government's own websites. So companies that meet the AA standards can be confident that they are in compliance with the ADA. They can also rest assured that they have done their part to ensure that individuals with disabilities can participate in the mainstream of American life.


"That" Versus "Which" . . . or "Don't Forget Your Pants"

I routinely see errors in the use of "that" and "which" in briefs and documents that come across my desk. This is something that many people struggle with, so I thought it might be helpful to cover ----    and hopefully simplify----   the relevant rules.

The traditional rule is to use "that" with restrictive clauses ( i.e., clauses that limit or restrict the identity of the subject or are essential to the meaning of the sentence) and "which" with nonrestrictive clauses ( i.e., clauses that tell us something interesting or incidental about a subject but are not essential to the sentence's meaning). 

I f you're like me, you find the restrictive/non-restrictive distinction difficult to apply. So here's a sartorial analogy that I found online: A nonrestrictive clause is like a scarf; if you forget to don it, your day won't be much affected. A restrictive clause, on the other hand, is akin to pants; your day won't be the same without them.

Here are the scarf and pants in action:

The scarf that I forgot at home would have pulled my outfit together.

The pants, which I forgot at home, were an essential component of my outfit. 

The former sentence uses a restrictive clause. It sets up a contrast between a particular scarf ----   the one I left at home ----   and other scarves. It leaves open the possibility that the speaker may have kept a spare (though less-color-coordinated) scarf at the office and may even be wearing one now. This highlights a general rule of thumb: If you want to tell the reader which one, use "that." 

In contrast, the latter sentence uses a non-restrictive clause. The point of the sentence is to convey that the pants were an essential component of the outfit; their location is tangential to that point. Here, the rule of thumb is this: If you could omit the clause without rendering the sentence incomplete or incomprehensible, "which" is probably correct.

But so much for tradition: Today, it is common for "which" to be used with both non-restrictive and restrictive clauses, especially in informal contexts. "Who took the scarf that I left on the dresser?" sounds better to me, but many would say that "Who took the scarf which I left on the dresser?" is not grammatically incorrect.

It is incorrect, however, even in informal contexts, to use "that" for a non-restrictive clause. "This newsletter, that I have never liked, delivers information of interest to anal-retentive people only." If you must utter this sentence, please replace "that" with "which" (and retain your subscription to this newsletter, not because you like it, but because you need it).

Tel: (202) 836-7136

Formerly a Deputy Chief in the Appellate Section of the Civil Rights Division at the U.S. Department of Justice, Ayesha has represented a party or a friend-of-the-court in dozens of U.S. Supreme Court cases, over one hundred federal and state appeals, and scores of trial-level cases. She has extensive management and supervisory experience in the private, public, and nonprofit sectors. She is admitted in MD and DC, every federal circuit, and the U.S. Supreme Court. In addition to handling appeals and briefing and arguing critical motions  at the trial level, she provides litigation-consulting services to advocacy organizations.

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