Earlier this month, the National Basketball Association was hit with a proposed class action alleging that the league’s website violates the Americans with Disabilities Act because it is not accessible to the blind. This follows closely after a lawsuit filed against Reebok, similarly arguing that the sporting goods company’s site contains access barriers that that make it difficult —if not impossible — for blind customers to use the site. Although these types of cases have been on the rise in recent years, they still come as a surprise to people who are used to thinking of the ADA only in terms of things like wheel chair ramps and handicapped parking spaces.
The ADA
Title III of the ADA makes it unlawful to discriminate against the disabled “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” To ensure the disabled have full and equal enjoyment of the goods and services of places of public accommodation, the ADA also requires companies to make certain “reasonable modifications,” including providing auxiliary aids, to ensure effective communication. Some states have laws that impose similar requirements.
This language of the statute has posed two broad questions for companies. First, is a website a “place of public accommodation” subject to the requirements of the ADA? And, if so, what reasonable modifications are required to help websites comply with the law?
Place of Public Accommodation
Since at least the late 1990s, the National Federation for the Blind has pushed various companies to ensure their sites are accessible to the blind. In many of those cases, the companies denied that their sites were places of public accommodation subject to the ADA, but nevertheless agreed to make changes to their sites. (More on those changes later.) But one retailer — Target — decided not to make changes, and opted to litigate the question of whether the ADA applies to websites, in the first place.
In a motion to dismiss, Target argued that the ADA (and a related California law) didn’t apply to websites, but rather, only to physical places. In denying Target’s motion, the court found that the ADA could apply where there was a “nexus” between the use of the website and enjoyment of the goods and services offered at the retailer’s physical store. “[T]o the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied.”
The case settled soon after, with Target agreeing to make changes to its website and to pay over $6 million to the class and $20,000 to a nonprofit corporation dedicated to helping the blind. Although there may still be some gray areas in companies may argue about the application of the ADA, the Target case has caused most to lose their appetite for litigation. A few companies are fighting the suits, but many are trying to quietly settle behind the scenes.
Reasonable Modifications
If you’re new to this area, you may wonder what modifications to a website might be necessary. The blind can navigate the web with the help of a “screen reader,” a program that can read the text of a webpage and convert it into a format that blinds user can understand, such as audio or Braille. Screen readers can also identify links and graphics to help users navigate using a keyboard, instead of a mouse. In order for a screen reader to work on a given website, though, the site must use code that is comprehensible to screen readers.
The World Wide Web Consortium (or “W3C”) has established Content Accessibility standards that can help. These standards include (a) adding invisible “alt-text” to graphics so that screen readers can recognize and vocalize them, (b) ensuring all functions can be performed on a keyboard, (c) ensuring image maps are accessible, and (d) adding headings to allow for easier navigation. (If these things don’t mean much to you, talk to your web developers, who should have a better idea.)
In recent years, there have been a number of settlements involving website accessibility, both involving private parties and the Department of Justice. It’s notable that all of the public settlements include some reference to the W3 standards. The DOJ announced that it would issue new regulations to “make clear to entities covered by the ADA their obligations to make their Web sites accessible.” Although this has been delayed several times, the DOJ has still been active in this area. Until those regulations come out, the W3C standards are the best guidelines.
Risks and Tips
Why do so many websites fail to comply with the ADA? In conversations with clients, we think that there are two key reasons. Some companies are simply not aware of the requirements. If you fell into that category before, you shouldn’t anymore. And some companies who are aware have decided that the costs of modifying their websites outweigh the risks of getting caught. If you fall into that category, you should note that these types of cases are on the rise, and the risks of getting caught are higher than ever. For every lawsuit (like the ones against the NBA and Reebok) that makes the news, there are many more suits that are threatened and quietly settled.
If you don’t know if your site is accessible to the blind, now is the time to find out. There are experts who can help. But if you don’t want to hire a third party, there are also free tools that you can use to get a sense of whether your website can be read by a screen reader. Once you figure out where you stand, it makes sense to come up with a plan to address deficiencies. You may not be able to get everything done overnight, but every step in the right direction can help when you are negotiating a settlement.
Gonzalo E. Mon and Crystal N. Skelton are attorneys in Kelley Drye & Warren’s Advertising and Marketing Law practice. You can reach them at gmon@kelleydrye.com and cskelton@kelleydrye.com, respectively.
