In 1990 the Americans with Disabilities Act, or the ADA, was signed into law. This law requires most employers and businesses to provide ‘reasonable accommodations’ for people with disabilities.
The ADA is broken up into five Titles, each of which covers specific provisions, including specifics on employment, public facilities and accommodations, and public entities and transportation.
This law now extends to some websites too, and has some major implications for website owners in 2020.
In fact, we’ve recently heard some disturbing news from clients who have been hit with lawsuits because their websites are not in compliance with the ADA.
In this blog post, we dive into the history of this legislation to better understand why it is in place, and how you can become compliant to avoid legal problems.
A History of Public Accommodation, Websites, and the ADA
ADA regulations are designed to help Americans with disabilities engage with and use businesses as well as non-disabled people—but these deal with physical locations. Websites don’t exist in the physical realm, right?
That was the ruling in 2002 when Access Now, a group dedicated to digital rights, sued Southwest Airlines on behalf of Robert Gumson, a visually impaired man living in Florida (Access Now, Inc. v. Southwest Airlines Co, 227 F. Supp. 2d 1312 (S.D. Fla. 2002)).
This case centered on Mr. Gumson’s inability to use Southwest Airlines’ website because they had not made any accommodations for his visual impairment. The United States District Court for the Southern District of Florida had to decide if Title III of the ADA (which deals with places of public accommodation) applied to websites.
The judge, Patrica Seitz, ruled that Title III applied only to "access to physical, concrete places," and thus did not apply to cyberspace. When Access Now appealed, the appellate court upheld the ruling, clarifying that it was not up to the judiciary branch to change the law, but rather that Congress had to “adopt or revise” the standards.
In plain English: “Not our problem.”
However, this 2002 case would prove to be the beginning of a long and consistent fight on behalf of disabled people.
Suspicious judge is suspicious.
National Federation of the Blind v. Target Corporation
The Access Now case precedent was challenged four years later in a ruling that came out of the United States District Court for the Northern District of California. In 2006, the National Federation of the Blind (NFB) sued Target Corporation, claiming that blind people were unable to access vital information on the Target website or make purchases independently (National Federation of the Blind v. Target Corp., (452 F. Supp. 2d 946)).
Before the lawsuit the NFB had attempted to negotiate with Target, asking them to make their website more accessible. After Target refused (nice of them), the NFB sued and cited not just the ADA, but also two Acts specific to California: the California Unruh Civil Rights Act, and the California Disabled Persons Act.
In their legal defense, Target relied in part on the 2002 Access Now lawsuit, saying that the ADA was intended to apply only to physical places.
This time, the court disagreed and ordered that a retailer could be sued if its website was inaccessible to the blind. Contrary to the Honorable Seitz’s ruling, California Judge Marilyn Hall Patel based her decision on the prohibition of discrimination in the “enjoyment of goods, services, facilities, or privileges.”
Winn Dixie and the Nexus Test
The Nexus test was established in 2017 when Juan Carlos Gil sued the supermarket chain Winn-Dixie in the United States District Court in Southern Florida (Gil v. Winn-Dixie Stores, Inc., 257 F.Supp.3d 1340 (2017)). Like the lawsuits against Southwest and Target, the issue revolved around the website being incompatible with the screen reader software Gil used to enjoy equal access to the internet.
Following other precedents, the courts ruled that if a public accommodation provides goods and services, they must have a sufficient “nexus” (or connection) to a physical location to be covered by the ADA.
Combining these decisions with the earlier Target lawsuit, the courts decided that a website is “a place of public accommodation” when it is integrated with physical stores and operates as a “gateway” to that store’s goods and services. Thus, when a website has a “nexus” with a physical store, it is covered by the ADA.
Bad news for Winn-Dixie.
Winn-Dixie appealed the decision and verbal arguments were taken at the beginning of 2019, but no decision has been handed down as of this writing.
One crucial point the court made was to question “whether businesses need to comply with federal and state law in the absence of regulations from the Department of Justice, or whether they should wait for the DOJ to give guidance.”
In plain English: “Which parent do you listen to?”
That brings us to Domino’s Pizza.
Domino’s Pizza, Mobile Apps, and DOJ Guidance
The latest decision on this issue came in January of 2019, when Guillermo Robles sued Domino’s Pizza (Robles v. Domino’s Pizza, LLC., 913 F.3d 898 (2019)), saying that neither their mobile app nor their website was designed to work with screen reader software that visually impaired individuals use.
Robles wanted them to comply with a set of accessibility guidelines. Domino's Pizza, on the other hand, wanted to wait for guidance from the DOJ or for regulations that would dictate how it should comply.
The court rejected Domino’s argument, saying that the ADA doesn’t have to provide any guidelines for compliance. Instead, the ADA is only to ensure that Domino’s receives fair notice of its duties to do so.
In plain English: “The ADA doesn’t have to tell you how to comply, only that you have to. Figure it out.”
In support of this, the court noted that the DOJ had issued an official memorandum in 2010, indicating that there would be upcoming guidance about website ADA compliance.
In December of 2017 (wasted no time, did they?), the DOJ withdrew that memo and remained silent.
The court speculated that this lack of guidance was intentional so that websites would have maximum flexibility when it came to ADA compliance. A letter from the DOJ in 2018 further bolsters this idea, with the following:
The court then ordered Domino’s to comply with the accessibility standard. Domino’s Pizza has appealed the decision, and no further action has occurred as of this writing.
Putting it All Together
So, what does that mean for you as a small business owner selling via Shopify or another e-Commerce outlet?
In short, unless you have a physical store, you don’t have to worry about it…yet.
But on the other hand, why wouldn’t you want to make your site fully ADA compliant?
According to the CDC, over 3.4 million Americans are either legally blind or visually impaired.
Close to 1 million are functionally deaf, and 10 million are hard of hearing.
What about someone with Parkinson’s, who can’t use a computer mouse with sufficient precision to be able to navigate, or an epileptic person afraid to surf the web out of fear that an animation will trigger a seizure?
All of these individuals represent an enormous pool of prospective clients, shoppers, and people who just want to be able to use your website like anyone else.
Just think about that for a second—what do you use the web for? Everything these days, right? Whether it’s ordering food, paying your car insurance, shopping on Amazon, running your business, keeping up with friends and family on Facebook, or accessing the biggest library of knowledge ever to be made available in human history…it’s all online.
But not for everyone.
Yet.
If you want to be inclusive of all (and CYA at the same time), your best bet is to proactively look to a common set of accessibility standards.
How to Become ADA Compliant
The set of accessibility standards that the courts are now relying on is commonly called WCAG 2.1, or Web Content Accessibility Guidelines, version 2.1. Catchy name, right?
There are three different levels of conformance with WCAG 2.1: A, AA, and AAA.
AAA represents maximum conformance and A the minimum. AA conformance is the standard that the DOJ and the courts have relied on.
So with that in mind, what does AA compliance even look like?
Here are four different guiding Principles to WCAG:
- Perceivable: Information and user interface components must be presentable to users in ways they can perceive.
- Operable: User interface components and navigation must be operable.
- Understandable: Information and the operation of the user interface must be understandable.
- Robust: Content must be robust enough that it can be interpreted by a wide variety of user agents, including assistive technologies.
Examples of AA conformance include closed captions for all live audio content or audio description for all prerecorded video content.
Getting your website into compliance is a time-heavy investment. Just getting one page to work with a screen reader can involve going into your website's code and manually undergoing dozens of changes and testing cycles. For your sanity, there are a few businesses that specialize in making these changes for you.
One of the best is one of our partners, accessiBe: a genuinely inspiring company out to make the internet accessible to ALL. From automatically adjusting font sizes to making alt-text changes to your images, their AI-powered interface gets you in conformance with WCAG 2.1 and other standards within 48 hours—with just one line of code.
They also make it easy to include an accessibility statement so that disabled users know you’re making an effort to make your store or site all-inclusive. That inclusiveness won’t just help you attract a broader clientele—it could also boost your bottom line and your social accessibility to boot.
Questions about how accessiBe works? Feel free to drop us a line here, or check them out yourself here.
Good luck!
