Despite the flood of lawsuits alleging website violations of Title III of the Americans with Disabilities Act (42 U.S.C. § 12182(a), the “ADA”), the federal government has not yet promulgated accessibility regulations for websites. Although the Department of Justice (“DOJ”) published guidance on website accessibility in March 2022, it is still unclear what companies need to do to comply with the ADA. Besides reiterating DOJ’s stance that businesses are considered places of public accommodation (“PPA”) under Title III and are required to remove barriers that make websites inaccessible for people with disabilities, no formal accessibility standards were established in the released guidance. Instead, the guidance states that businesses have “flexibility” in how they must comply with the ADA’s requirements and make their websites accessible. Without formal government regulations, the Web Content Accessibility Guidelines (“WCAG”) published by the Web Content Accessibility Initiative of the World Wide Web Consortium have become the de facto standard.

Who is required to be ADA compliant?

ADA compliance is required for businesses and organizations that fall into one of the following categories: private companies with 15 employees or more; public-facing businesses; local, county, state and federal government agencies; and nonprofit organizations operating for the benefit of the general public or that have at least 15 employees. ADA compliance is not required for religious entities or private membership clubs.

Specific requirements must be met in order to be a private membership club under the ADA and charging membership or annual fees does not automatically mean the business is exempt. In determining whether a private entity qualifies as a private club under Title III, courts have considered such factors such as the degree of member control of club operations, the selectivity of the membership selection process, whether substantial membership fees are charged, whether the entity is operated on a nonprofit basis and the extent to which the facilities are open to the public. United States v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989).

Circuit courts have reached differing conclusions regarding the scope of entities subject to Title III of the ADA. Based on the types of establishments listed in 42 U.S.C § 12181(7), the Third, Sixth and Ninth Circuits have concluded that the term “place of public accommodation” requires some connection between the good or service complained of and an actual physical place. See Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998), Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997) and Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000). In contrast, the First Circuit has held that the phrase “public accommodation” “is not limited to actual physical structures.” Carparts Distribution Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1^st Cir. 1994).The Second and Seventh Circuits have similarly interpreted Title III as extending beyond physical locations. Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32-33 (2d Cir. 1999), Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999). The Fourth Circuit has yet to address whether a website itself can constitute a place of public accommodation. Most recently in Mejico v. Alba Web Designs, LLC, 515 F. Supp. 3d 424, 431 (W.D. Va. 2021), the court concluded that places of “public accommodation” are not limited to physical, brick-and-mortar establishments and instead include commercial websites that offer goods and services.

What is required to be ADA compliant?

The websites of public accommodations need to be accessible to individuals with disabilities, particularly to those who are blind or have low vision, to enable individuals to access the goods and services on the website. While, as noted above, since DOJ does not have formal web accessibility standards, DOJ has pointed WCAG 2.1 as an example of a universally recognized technical standard that can provide helpful guidance for making a website accessible. Although these guidelines cover a wide range of issues, they do not address the needs of people with all types, degrees and combinations of disabilities. These guidelines, however, aim to make Internet content more user-friendly for older individuals with declining abilities due to aging and often improve usability for site visitors in general. WCAG is for those who want a technical standard and is primarily intended for content developers (page authors, site designers), Internet authoring tool developers, website accessibility evaluation tool developers and others who want or need a standard for web accessibility, including mobile accessibility. The most critical requirements for ADA compliance are outlined by WCAG 2.1 and section A of the 18F Accessibility Guide, published by the Technology Transformation Services, a digital service agency under the General Services Administration (“GSA”). 18F provides a checklist that helps developers and website owners identify potential accessibility issues with their websites or applications. The checklist has three sections: A, B and C, with A being the most critical issues that will stop most users with disabilities from using the site to C being minor issues that will cause problems for a small number of users. Below is the full 18F checklist:

A – Critical

• Site is keyboard accessible (i.e., all interactions can be accessed with a keyboard)
• Site is free of keyboard traps (i.e., the user does not need to switch to a mouse for user input areas, embedded media players, or third-party widgets like “CAPTCHAS.” If you can’t navigate the whole web page using tab, shift, and enter, then the website is not keyboard accessible and is not compliant with the ADA.)
• All form inputs have explicit labels (i.e., forms are labeled clearly for login, registering, commenting and purchasing, and provide instructions for filling out forms and options to undo changes and confirm data entry)
• All relevant images use an img tag and have alt attributes (i.e., images have text alternatives that describe the information or function represented by them so that it can be read aloud by people using screen readers)
• Multimedia is tagged (i.e., all multimedia has appropriate captioning and audio description)
• Text has sufficient color contrast (i.e., all text has a contrast ratio of 4.5:1 with the background)

B – Less Critical

• Site never loses focus (i.e., focus is always visible when moving through the page with the keyboard)
• Tab order is logical
• Form instructions are associated with inputs
• Site doesn’t timeout unexpectedly (i.e., identify elements that may “timeout” and verify that the user can request more time)
• Tables are coded properly (i.e., tables have proper headers and column attributes)
• Headings are nested properly (i.e., heading elements are nested in a logical way)

C – Minor

• Frames are named (i.e., all frames have a name element)
• Flashing elements are compliant (i.e., elements that flash on screen do so at a rate of less than 3 Hz)
• Language is set (i.e., the language for the page is set, the language for sections on the page that differ from the site language are set)
• CSS is not required to use the page (i.e., the page makes sense with or without Cascading Style Sheets (CSS), descriptors of how HTML elements, the standard language for web pages, are to be displayed)
• Links are unique and contextual (i.e., all links can be understood taken alone, e.g., ‘Read more about 508’)
• Page titles are descriptive
• Required plugins are linked on the page

The Section 508 Standards, which the federal government uses for its websites, also provide guidance for compliance. Section 508 requires information and communication technology developed, procured, maintained, or used by federal agencies to be accessible under Section 508 of the Rehabilitation Act. WCAG 2.1 is more explicit than the existing 508 and ADA standards, and both federal agencies and departments under 508 and nonprofits and businesses under the ADA use WCAG to ensure compliance with their applicable requirements.

How much compliance is enough to avoid liability under the ADA?

In Gomez v. Trinitas Cellars, LLC, No. 3:21-cv-09006-WHO, 2022 U.S. Dist. LEXIS 108468 (N.D. Cal. June 17, 2022), a California district court addressed whether 100% accessibility is necessary to avoid liability under the ADA. The court held that it is not, determining that although “it may have been ideal for the [website] banner to be readable,” the plaintiff never explained how its lack of readability denied him full use or equal enjoyment of the site. Id. at *10. In response to the plaintiff’s claim that the website had “impermissibly low contrast,” the court used similar reasoning and held that the alleged lack of contrast was insufficient to amount to an ADA violation. Id. at *15.

There is still much uncertainty regarding the obligations of Title III-covered entities to make their websites accessible to individuals with disabilities. When the ADA was enacted in 1990, the Internet was unknown to most of the public. Since then, the Internet has become an integral part of daily life and, when accessible, provides individuals with disabilities additional independence. In April 2023, DOJ is expected to publish a Notice of Proposed Rulemaking to amend its Title II ADA regulation to provide technical standards for state and local government entities. It is anticipated that Title III private businesses will likely receive clarity on ADA compliance later in 2023.

Please reach out to Lutzker & Lutzker for guidance on reasonable ADA compliance given the unique features of your business or nonprofit and your website.