By John C. Clark, Attorney at Law
Is your website a "place of public accommodation"?
Title III of the Americans with Disabilities Act (ADA) forbids discrimination on the basis of disabilities and requires that “places of public accommodation and commercial facilities to be designed, constructed, and altered” in compliance with standards for accessibility. Since the ADA was enacted in 1991, when company and commercially based websites were mostly non-existent, the issue of whether websites constitute “places of public accommodation” and subject to ADA compliance has been in need of some definition and guidance.
All privately owned websites offering services to the general public must comply with Web Content Accessibility Guidelines.
In 2010, the Department of Justice announced it would issue regulations concerning accessibility of websites under Title III, but such guidance has generally consisted of proposed rules and regulations without finalization or implementation.
The current position of the DOJ is a requirement that all privately owned websites offering services to the general public must comply with Web Content Accessibility Guidelines 2.0, Level AA, issued by the World Wide Web Consortium (WWWC.) The requirement is based on whether the website is a place of public accommodation in itself or is a service of a place of public accommodation.
One problem, however, is that a business owner who Googles the WWWC guidelines will review a lengthy document that isn’t comprehensible to anyone other than an experienced computer engineer or programmer. The California legislature undertook to draft some guidelines for its citizens and businesses, but nothing will be forthcoming any time soon.
There has been some recent web accessibility guidance from the courts.
The U.S. 9th Circuit (covering the western states, including California) has interpreted the term “place of public accommodation” to require some connection between the goods or services complained of and an actual physical place. However, other jurisdictions have ruled differently. The U.S. Supreme Court has not provided any guidance in this area as yet.
California, in addition to the ADA requirements, has the Unruh Civil Rights Act and the California Disabled Persons Act, which provide for minimum damages and attorney fees for successful claimants of discrimination.
One California case involving Domino’s Pizza asked whether its website and mobile application lacked adequate written descriptions for their images, which prevented the plaintiff (who was blind) from using the platforms to order food from the restaurant. The court concluded that the website and phone app were connected to the physical locations and thus subject to the ADA requirements. This ruling, which the U.S. Supreme Court refused to review, means that businesses need to determine whether and how the ADA, and Unruh Act, may require compliance for a company’s website.
There has been an increase in predatory plantiff demands.
Recently, we have become aware of predatory plaintiffs who purport to visit company websites and issue compliance demand letters from an attorney. Then, following the compliance letter, a demand for payment of damages follows.
A review of the demand letters makes apparent the claimant is not a legitimate consumer or normal visitor to the website but is only seeking monetary damages and attorney fees. Thus, we suggest an ounce of prevention now instead of the prospect of litigation later.
Indeed, the minimum damage award under the Unruh Act is $4,000 plus reasonable attorneys fees. Thus, a violation of the ADA requirements would likely result in a settlement of between $5,000 - $10,000 in addition to the cost of making your website compliant with ADA standards.
The best way to prevent predatory ADA claims is to ensure your small business website is accessible.
We recommend that you contact your website administrator and request that your website be reviewed for ADA compliance. If compliance is needed, you may require a major overhaul, or it could be as simple as installing an add-on program to your website. One such product is from Accessibe.com, installs in minutes, and has a relatively low monthly license fee. Should you wish to discuss further or wonder whether your business operation requires ADA compliance for your website, feel free to contact our firm.
Rusconi, Foster & Thomas, APC
We're located in Morgan Hill, California serving Santa Clara, San Benito, Santa Cruz, and Monterey Counties since 1956.