DOES THE ADA APPLY TO WEBSITES?
Recently a federal trial court became the first court to find that a commercial website must be accessible to the disabled, and to blind customers in particular, because of the prohibition against disability discrimination by places of public accommodation contained in the Americans with Disabilities Act (ADA). Whether the retailer would, in fact, be liable on the particular facts of the case remained to be decided, but the court declined to dismiss the class action complaint.
Requiring businesses to make their websites fully accessible by the blind will likely involve adding computer code for “alternative text” that permits screen‑reading software used by blind individuals to vocalize the text and describe the contents of the webpage. Using this code when the site is initially designed is less expensive than retrofitting a website later.
The retailer argued to no avail that the demands of the ADA do not apply, because a website, since it is not really a physical place at all, is not a “place of public accommodation” within the meaning of the ADA. The court reasoned that the ADA requires full and equal enjoyment of the services “of” any place of public accommodation, not services “in” a place of public accommodation. The ADA is not only about physical access to places.
The court found that the retailer’s many brick‑and‑mortar stores constituted the “places” of public accommodation. The retailer’s website serves as a “gateway” to such stores, especially for blind customers. If the website is not fully accessible to them, it impedes those customers from coming through the gateway, that is, from having the “full and equal enjoyment” of the stores’ goods and services that the ADA mandates. The court drew an analogy to a case in which a telephone screening process for prospective contestants for a television game show violated the ADA by discriminating against the hearing disabled, even though the discrimination took place away from the studio where the show was produced.
Although the decision broke new ground in ADA jurisprudence, the court’s “gateway” reasoning relied on the connection between the business’s website and its many retail stores. The court did not have occasion to address the variation on the same issue posed by the websites of retailers who have no brick‑and‑mortar stores. Such a situation presents a closer question as to whether the ADA applies. For a website‑only business to come within the ADA, a court would have to find that a “place of public accommodation” does not have to include a physical place at all, but can, instead, be the virtual world in which website transactions occur.