Guest Essay

How Non-Compliance with the ADA Can Be B-A-D For Your Business

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Like other pieces of civil rights legislation in the United States, the Americans with Disabilities Act (ADA) is aimed at prohibiting discrimination of those persons with disabilities and ensuring that they are afforded the same opportunities as every American. Among other objectives, this law was essentially enacted to guarantee that individuals with disabilities can not only enjoy certain liberties, such as the equal right to employment and to participate in state and local government programs, but also that they are provided with adequate accommodations when purchasing goods or services. Often times, however, businesses overlook or simply do not realize that their non-compliance with the ADA can potentially lead to unintended consequences, especially for their bottom line and for their goodwill. 

So, how does this law apply to your business? The ADA applies to state and local governments under Title II and prohibits discriminatory practices against people with disabilities in regard to all services, programs, and activities provided by such agencies. Title III of the ADA, often referred to as “public accommodations,” extends the law to any private entity that owns, leases (or leases to), or operates any place of public accommodation. Under Title III, the law mandates that these businesses provide equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities. While this is not an exhaustive list under the statute, some examples of private entities that are considered public accommodations include: retail stores, banks, businesses within the hospitality industry, transportation depots, hospitals and medical offices, restaurants, sports and entertainment arenas, daycares, private schools, and more, provided that their operations affect commerce. 

In recent years, it has been argued that the ADA’s public accommodations requirements also encompass those businesses whose goods, services, privileges, or activities are offered online. More specifically, 42 U.S.C. § 12182(b)(2)(A)(iii) provides that covered entities must “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services.” With the emergence of the digital age, this portion of the law has quickly become a source of contention. While almost all businesses today have an online presence, Title III of the ADA has single-handedly caused many entities to become the subject of litigation for its non-compliance due to website inaccessibility. 

Businesses should beware, in 2021, the number of Title III ADA lawsuits filed in federal courts reached an all-time high. According to Seyfarth Shaw LLP, the number of these suits being filed has increased 320% since 2013. One of the most common claims being asserted under Title III against businesses is that their websites are inaccessible to those with disabilities. However, there are some grey areas within Title III that has caused confusion of its legal interpretation. In particular, courts are divided as to whether or not the ADA limits places of public accommodation to physical locations, thus excluding websites altogether. Some courts hold that the ADA applies to websites if a plaintiff can show a sufficient “nexus” between the website and the physical location, while other courts have found that the law can be applied to websites absent a connection to a physical space. Then, there are other circuits that have held that websites are not a place of public accommodation under Title III at all simply because websites were not expressly provided for within the statutory language.  

Despite the differing opinions amongst the courts, “[n]ow that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of reaching the public would defeat the purpose of the important civil rights legislation.’) …” Carroll v. Fedfinancial Fed. Credit Union, 324 F.Supp.3d 658 (E.D. Va. 2018). As such, you can expect to see a steady increase in these types of ADA claims in the future. 

There are many reasons why companies hesitate to comply with the public accommodation requirements for websites under Title III of the ADA. For some, it may be that their online business is so small that they do not have adequate resources to ensure that their site follows the law. Other companies do not comply because they may not be knowledgeable of the ADA or that Title III of the law even applies to their business. Finally, those companies that are aware of the law may be hesitant to comply due to the split decisions within the circuits and the lack of guidance from the United States Department of Justice (DOJ) on what the requirements actually entail.  Whatever the reason may be for its non-compliance, businesses are doing a disservice to itself by excluding its reach from individuals of a particular target audience. Furthermore, by failing to provide necessary accommodations to its potential customers, companies run the risk of being named in a potential lawsuit and having to pay significant fines if it does not prevail. 

As courts continue to explore the inquiry of whether or not a website is considered a public accommodation, companies should always err on the side of caution and ensure that their website is ADA compliant, even if the law does not directly apply to their business. With attorney’s fees and costs, defending an ADA lawsuit can be costly. Not to mention, if you are unsuccessful in your case, having to implement ADA compliance measures may be exorbitant as well. Also, businesses should consider the loss of revenue and missed business opportunities by simply not appealing to individuals with disabilities, which could have been easily captured by having an ADA accessible website. Some companies are oblivious to the fact that this may cause deterioration to its goodwill as well.  

While there are no clear rules under the ADA regarding website compliance, many organizations look to the Web Content Accessibility Guidelines (WCAG) for guidance. It is important to note that the WCAG is not a legal requirement, but merely a tool that is used as a reference point. Following the latest version of the guidelines, WCAG 2.1, there are several ways businesses can mitigate their risk of becoming the subject of a Title III cause of action. WCAG 2.1 provides that as long as your website is perceivable, operable, understandable, and robust it will meet minimum standards of accessibility. 

Perceivability standards are met when information and user interface components are presented in a manner in which users can perceive. Minimum standards of perceivability are met if the site offers alternatives to text, such as audio or other assistive technology for visually impaired individuals. One way to achieve this goal is by creating alt tags for all images, videos, and audio files on your site. This provides users with the ability to read or hear alternative descriptions of the content.

Next, ensure that your website is operable. Some ways that your business can maintain operability standards are by offering keyboard accessibilities for disabled users to better navigate the site and access content; ensuring that the site will not time-out before users are able to read and use the content; and making certain that the site is not designed in a way that is known to cause seizures or physical reactions. 

Additionally, companies will want to be sure that their content is easy to understand by creating content that is readable and predictable and offering input assistance if necessary. By simply creating text transcripts for video and audio content, hearing-impaired users could better understand the content on a site. 

Finally, the content on your website should be robust enough that it will be compatible with a vast array of user agents and assistive technologies. Businesses should ensure that their site has an organized layout, where menus, links, and buttons are clearly defined throughout to create an ADA compliant and user-friendly experience. To learn more about how to meet minimum web accessibility standards, consider reviewing the WACG 2.1 in its entirety. 

Whether you are starting a business or if you’re a seasoned corporation, be mindful of the effects of non-compliance with the ADA – it could cost you. Every ADA case is different, but taking necessary steps to obtain website accessibility could keep your business out of the line of fire. 

Reference: (Vu, Minh; Launey, Kristina; and Ryan, Susan. ADA Federal Lawsuits Filings Hit an All Time High. Seyfarth Shaw LLP, 17 Feb. 2022, www.adatitleiii.com/2022/02/ada-title-iii-federal-lawsuit-filings-hit-an-all-time-high/. Accessed 14 Sep 2022).


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