Last year saw an upswing in people filing lawsuits under Title III of the Americans with Disabilities Act (“ADA”), which prohibits businesses open to the public from discriminating against people with disabilities – whether in their brick-and-mortar buildings or their online websites.
What may come as a surprise is that many of those lawsuits have focused on website accessibility. Courts have been slammed over the last few years with lawsuits filed by individuals with disabilities claiming that businesses’ websites are not accessible to them. These lawsuits, filed mostly by people with sight or hearing disabilities, allege discrimination violating various local, state, and federal laws.
For example, Title III of the ADA generally requires that “places of public accommodation” (public-facing businesses that fall within at least one of 12 categories) provide “equal access” to their goods, services, and facilities to individuals with disabilities. However, neither Title III nor its implementing regulations clarify how a company must format its website to comply with the law.
As a result, plaintiffs filing website accessibility lawsuits under Title III are basing their causes of action on two legal theories. The first focuses on Title III’s “equal access” and general nondiscrimination mandate. The second focuses on the more specific requirement that places of public accommodation provide auxiliary aids and services as necessary (at no extra charge) to ensure effective communication with individuals with disabilities. This application of general nondiscrimination principles has resulted in a maze of complex and sometimes conflicting decisions.
On the other hand, there is not a cohesive nationwide law that similarly applies to private employers across the country. For example, laws such as California’s Unruh Civil Rights Act or New York State and City Human Rights Laws apply on the state side. Because none of these laws or their regulations specifically address websites or contain any standards for website accessibility, courts across the country have had to apply more general nondiscrimination principles to website accessibility lawsuits.
In response, the Department of Justice (“DOJ”) recently announced its intent to begin the rulemaking process to enact website accessibility regulations applicable to state and local governments.
The rulemaking effort is a “long-term action”, with a Notice of Proposed Rulemaking scheduled to issue in April 2023 and for the DOJ to receive public comment no later than June 2023. According to the DOJ announcement, “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online.”
Thus, the DOJ intends to amend its “ADA regulation to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”
Many people have long desired regulations providing guidance with respect to websites under the ADA. However, the last effort to do this, begun by the Obama DOJ in 2010, drew on for years before the Trump administration withdrew it at the end of 2017. Now, with the DOJ starting the rulemaking process, things may slowly start to change. Additionally, while the DOJ regulations would apply only to state and local governments, as in prior rulemaking efforts, regulations applicable to private businesses subject to Title III may well follow in similar form and substance.
While we await a potential future set of DOJ rules, the Courts will continue to evolve the field of website accessibility law – slowly. There are few appellate decisions, and each one prompts a flurry of questions from businesses eager for more guidance in this uncertain landscape. A few things are clear, however. Plaintiffs will continue to file lawsuits. They are pushing for coverage of sites that only provide information (e.g., news and pharmaceutical websites), investor-facing websites, and websites unconnected to physical locations where goods and services are offered. Plaintiffs are also expanding their lawsuits to other digital assets, such as mobile apps and games. These areas are all uncharted territories ready to be attacked by industrious lawyers and plaintiffs. So, as we patiently await the DOJ’s rules, businesses should proactively consider accessibility when acquiring, building, and maintaining all digital assets.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://