disabilities

Overhauling the Americans with Disabilities Act – by Lionel Wolberger

There has been a surge in federal civil rights lawsuits regarding the Americans with Disabilities Act (ADA) over the past decade. Lawsuits involving website accessibility under the ADA are also on the rise, growing 14% year-over-year in 2021. The major complication in all of this is that the ADA, passed by Congress in 1990, predates the earliest websites. Because the law does not explicitly discuss web accessibility, over the past three decades a legal landscape has developed that is both unpredictable and divisive.

For one, rules and regulations for web accessibility are beginning to vary from state to state. Members of Congress are penning letters to the Department of Justice (DOJ) urging them to establish clear accessibility rules for state and local websites. And there are a growing number of inconsistent rulings among that nation’s federal court districts on the subject. This article will explore the urgency of revamping the ADA to account for existing and emerging technology, and how uncertainty continues to grow on how and where the ADA applies.

Since the passage of the ADA, over a billion websites have come into existence worldwide and the vast majority of them feature content, design, and features that functionally prevent people with disabilities, such as visual, hearing, and motor impairments, from equally accessing and enjoying the content. The big question is are digital spaces subject to the same equal access standards as their brick-and-motor equivalents?

The ADA was passed in the U.S. as civil rights legislation and intended on protecting people with disabilities from discrimination in the workplace, in state and local government agencies, andin private businesses of “public accommodation,” including places like restaurants, hotels, gyms, and venues. However, as was previously noted, the law was written to place mandates on the physical features of these establishments. The DOJ has provided clear regulatory standards for how these public spaces should comply with physical establishments. That being said , there are no such standards for websites and mobile apps.

Over the past decade this has resulted in a void in regulatory standards and in a bevy of lawsuits. On one hand, people with disabilities have no alternative mechanism other than litigation to seek relief when a business has an inaccessible website. On the other hand, plaintiff lawyers have been able to leverage this regulatory uncertainty through hundreds of serial mad-lib lawsuits.

Many courts have ruled against these plaintiffs, maintaining that websites are not subject to the ADA. In some of these rulings, judges have noted they are ruling according to current law while simultaneously calling on legislators to address the deficiencies. To complicate things more, splits in opinion among federal courts are beginning to manifest on several matters involving the ADA.

In a blow to what was viewed as promising precedent-setting litigation for web accessibility, the Eleventh Circuit Court of Appeals ruled in 2021 in Gil v. Winn Dixie that the ADA Title III’s provisions for equal access to “places of public accommodations” did not apply to websites. The plaintiff, a blind man, argued that because he was unable to refill prescriptions on the grocer’s website using his screen reader, the company was violating the ADA. 

The Eleventh Circuit disagreed and overturned a lower court’s decision in Gil and went as far as to say websites are not covered by the ADA at all, thus taking an opposing stance from that of the First, Second, and Seventh circuits which have ruled websites may be covered by the ADA.

In the closing paragraph of its decision on Gil, the Eleventh Circuit Court wrote, “Absent congressional action that broadens the definition of ‘places of public accommodation’ to include websites, we cannot extend ADA liability to the facts presented to us here, where there is no barrier to the access demanded by the statute. We, therefore, vacate the district court’s Final Judgment and remand for further proceedings consistent with this opinion.”

The Eleventh Circuit’s decision has since been vacated due to the mootness of the case itself. However, the Winn Dixie saga does provide insights into the Circuit’s inclinations toward the ADA. It may be only a matter of time before a similar decision is reached in a newer, applicable case.

The Eleventh Circuits’ stance on “public accommodations” contradicts a ruling by the U.S. Court of Appeals for the Ninth Circuit in Robles v. Domino’s Pizza, LLC which regarded the pizza restaurant’s website as falling under the rules of the ADA as it was a service “of” public accommodation. This has been referred to as the “nexus” standard, which means that when websites are extensions of the services of physical establishments, they must follow accessibility guidelines.

The Supreme Court has declined to review Robles, but now that Gil provides a clear contradiction between circuits, it may have to step in. Some fear the High Court will also adopt a nexus standard, creating a nationwide precedent and essentially rolling back equal access rights for people with disabilities.

Until then, it appears more courts are agreeing that, as written, the ADA is limited in its reach regarding online and digital content. 

In early August 2022, a California State Court of Appeals agreed with the Ninth Circuit’s nexus standard and ruled in Martinez v, Cot’n Wash, Inc. that online-only businesses were not covered by the ADA at all. This ruling is significant in the landscape of ADA lawsuits as plaintiffs have often chosen California as their launching ground for complaints due to the state’s Unruh Act, a local statute that allows for a minimum of $4,000 in statutory damages. The ADA only permits claimants from seizing attorney fees and non-monetary relief.

Concerning the ADA and web accessibility, the California Appeals Court wrote, “Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification.”

There have been efforts and bills filed to refresh the ADA to address information and communication technology (ITC). However, those bills have failed to reach any critical support among lawmakers, and many fail to gather support from disability rights advocates themselves.

U.S. Representatives Ted Budd (N.C.), Richard Hudson (N.C.), and Lou Correa (Calif.) re-introduced the Online Accessibility Act in Congress as H.R. 1100 in February 2021, which would set specific guidance on accessibility. The bill would add a “Title VI” to the ADA and make the Web Accessibility Content Guidelines (WCAG) 2.0 AA the access standard and methods to update this over time. 

The bill suggests directing the U.S. Access Board and not the Department of Justice (DOJ) to issue, propose and adopt regulatory standards for web accessibility and to update them to reflect new technology. Where this proposal loses steam among many disability rights supporters is that it institutes a threshold for litigation and enforcement. The bill would require plaintiffs to submit formal complaints about alleged noncompliance with accessibility standards and allow for 90 days for the problems to be remediated. Advocates have routinely opposed notice and cure adjustments to the ADA.

Outside of efforts to make formal changes to the law itself. Congress has made several rounds of letter-writing efforts with the DOJ attempting to bring clarity to standards.

Ten U.S. Senators delivered a letter to the DOJ as recently as June urging it to “expeditiously” pursue regulatory measures under the ADA’s Titles II and III to ensure state, local governments, and public accommodations are utilizing proper accessibility measures for their websites and mobile applications. These Senators said the lack of regulations has resulted in a widespread lack of meaningful digital accessibility for people with disabilities.

The DOJ has long viewed websites as being subject to the ADA — they initially indicated this in 1996 — but it has failed year after year and through numerous presidential administrations to provide specific requirements or benchmarks for what accessibility should look like. As early as 2010, the Department had issued an Advanced Notice of Proposed Rulemaking (ANPRM) citing the need for greater clarity on the ADA. That notice was withdrawn entirely in 2017.

After years of more silence, the DOJ weighed in again on the issue in March 2022 by issuing “guidance measures” on the ADA and web accessibility. But many disability rights advocates found the step disappointing. 

The guidance provided examples of web accessibility features — such as color contrasts and alt text — and reiterated the Department’s position that the ADA applies to web accessibility, but it falls short of offering any new information and only suggests WCAG and Section 508 (standards governing federal agencies) as possible resources for guiding an organization’s accessibility standards. Ultimately, the guidance neglects to point to a clear standard for websites and apps to comply with the ADA, leaving companies exposed to the same legal liabilities as they have been dealing with for the past decade.

There are a number of avenues that can be taken to begin to unravel this predicament. These include:

  • Organizations can choose a proactive and business-minded stance to make their websites accessible and compliant with the highest level WCAG standards. This can provide much-needed liability protection from possible legal action.
  • State governments can implement their own standards for web accessibility to provide additional protections and regulatory clarity where there is uncertainty at the federal level. 
  • Congress could amend the ADA to explicitly govern consumer-facing websites and mobile applications owned or operated by a private entity. Standards for emerging technologies, such as augmented, virtual and mixed reality and voice input, should also be considered.
  • The DOJ could adopt a specific set of standards to hold businesses to, such as the WCAG or Section 508 of the Rehabilitation Act.

The more individual and local the actions listed above are, the more immediate the cures for this issue. Passing the buck and continued delays by the federal government and agencies to set regulatory standards to prolong exposure for U.S. businesses to additional liabilities, as well as continue to allow citizens with disabilities to be disparaged.

 

Photo by Markus Spiske on Unsplash

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