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Website Americans with Disabilities Act Compliance Remains a Pressing Concern

As discussed in a prior alert, Title III of the Americans with Disabilities Act (ADA), which forbids “places of public accommodation” from discriminating against those with disabilities, may also apply to websites. Blind and visually disabled people often use adaptive software to “read” websites and navigate using keystrokes rather than a mouse.  For this assistive technology to work properly, particular coding must be used in creating the website. 

Observers and experts in this area have been waiting for the Department of Justice, which enforces the ADA, to promulgate rules regarding the ADA’s applicability to websites for years, but the rulemaking has been repeatedly delayed.  Most recently, the DOJ issued notice that it intended to release rules in April 2016.  Instead, at that time, the DOJ withdrew its notice and indicated that it “intend[ed] to solicit additional public comment on various issues to help the Department shape and further its rulemaking efforts” in light of continually changing technology.  It now appears that rules will be promulgated in 2018 at the earliest.

In the meantime, in the absence of concrete guidance from the DOJ, businesses and their compliance and IT professionals have scrambled to determine whether the ADA applies to their website, and, if so, what, if any, accessibility fixes are required.  Recent cases indicate that the “places of public accommodation” language of the ADA applies to websites, though there is a Circuit split about whether there needs to be a “nexus” between the website and an actual physical location.  That is, the Third, Sixth, Ninth, and Eleventh Circuits have held that a solely web-based businesses is not a “place of public accommodation” under the ADA, but the online arm of a brick-and-mortar retailer is.  By contrast, the First, Second, and Seventh Circuits do not require a physical location for the website to be considered a place of public accommodation. 

Currently, there is no firm guidance regarding what constitutes adequate accessibility for a website, but there is a growing consensus that a relevant standard is the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG), Level AA.  Full text of the WCAG is available at http://www.w3.org/TR/WCAG20/.  The DOJ has specifically signed off on settlements where alleged ADA violators agree to comply with WCAG at the AA level, and many commentators believe that, when the DOJ does issue rules, they will either mirror or specifically incorporate the WCAG AA guidelines. 

Now more than ever, businesses building or updating their websites should consider accessibility from the outset, because litigation in this area appears to be increasing.  Moreover, plaintiffs are generally not required to notify allegedly noncompliant businesses and allow them to remediate any issues prior to filing suit. Plaintiffs can only obtain injunctive relief and attorney’s fees in litigation under the ADA, i.e., punitive damages are not available, yet private settlements of these cases have been very costly.  The majority of these cases have been filed in California, New York, and Pennsylvania — the homes of the primary filers of these suits.  California-based businesses in particular should be cautious, in light of the California state counterpart to the ADA, the Unruh Civil Rights Act, which provides remedies beyond those provided by the ADA.

© 2017 Neal, Gerber & Eisenberg LLP.

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About this Author

Lee J. Eulgen, Partner, Neal Gerber law firm
Partner

Lee J. Eulgen has significant experience in intellectual property litigation, negotiation and counseling, including trademark, copyright, patent, right of publicity, trade secret, trade dress, domain name,  entertainment, unfair competition and privacy-related matters. In particular, Lee has first-chaired countless intellectual property disputes and he is a member of the International Trademark Association’s Enforcement Committee. Lee has also handled numerous brand and technology-driven transactions, including licensing and information technology transactions, as well as sponsorship and...

312-269-8465
Katherine Dennis Nye, Intellectual Property & Technology Transactions attorney, Neal Gerber law firm
Associate

Kate Dennis Nye focuses her practice on assisting clients with their branding and marketing needs. Kate counsels clients on trademark clearance, and assists them with filing new trademark applications and maintaining their trademark portfolios worldwide. She also manages intellectual property policing and enforcement matters for numerous clients at all stages of such disputes, and her litigation experience includes both federal court and Trademark Trial and Appeal Board proceedings.

Additionally, Kate regularly works with clients to review and vet marketing and promotional material, including clearing promotional taglines and ensuring compliance with the rules, regulations, and best practices governing advertisements. She also helps clients appropriately structure game promotions, including drafting rules for sweepstakes or contest campaigns. Kate has also assisted clients in responding to inquiries from the Federal Trade Commission regarding advertisements and in assessing competitor claims of false advertising under the Lanham Act.

312-827-1455