Clicks, Bricks, and Politics: Website Accessibility Under Title Ii and Title Iii of the Americans With Disabilities Act

JurisdictionUnited States,Federal
Publication year2022
CitationVol. 73 No. 2

Clicks, Bricks, and Politics: Website Accessibility Under Title II and Title III of the Americans with Disabilities Act

Elliza Guta

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Clicks, Bricks, and Politics: Website Accessibility Under Title II and Title III of the Americans with Disabilities Act


Elliza Guta*


I. Introduction

The Internet's role in modern society is constantly expanding. While only a few thousand websites were in existence in the early 1990s, there are almost two billion active websites today.1 Every major business, news source, health care provider, and government entity has an online presence and the nation's reliance on the Internet is growing. The role of the Internet in Americans' daily lives is not a new phenomenon, but in the wake of the coVID-19 pandemic, the use of the Internet and online technology has dramatically increased. Whether it's grocery shopping, zoom-school, or checking local infection rates, the pandemic has only further cemented the role of websites and online media platforms in our lives.2

Despite the increasing importance of the Internet, many websites remain inaccessible to over sixty million disabled individuals living in America today.3 While the advent of new assistive technologies makes it

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possible for disabled individuals to access the Internet and use computers in ways that were previously impossible, the "digital divide" persists as businesses continually fail to create and modify websites to work with assistive technologies.4 The large-scale transition from brick-and-mortar services to "click-and-mortar" services illustrates that the problem of website accessibility is not disappearing anytime soon.5 In response to this growing problem, the disabled community has filed countless lawsuits against both government and private entities under the Americans with Disabilities Act (ADA).6

Although the ADA was created to remedy the pervasive problem of discrimination against disabled individuals, the ADA's application to websites remains unclear. The majority of website accessibility claims have been filed against private entities under Title III of the ADA.7 For over twenty years, courts have debated whether websites are places of public accommodation subject to Title III's accessibility requirements.8 Recently, there has been an influx of claims brought against public

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entities under Title II.9 While the courts are divided on the application of Title III to claims against private entities,10 courts largely agree Title II applies to the websites of public entities.11 Nevertheless, courts continually struggle with the appropriate standards to determine whether a government entity's website is accessible.12 The lack of clear and consistent standards illustrates that the solution to the problem of website inaccessibility is not further judicial intervention. Instead, the best way to address the digital divide is to amend the text of the statute and promulgate regulations to provide comprehensive standards applicable specifically to website accessibility claims.

This Comment analyzes website accessibility claims under both Titles II and III of the ADA. Part two of this Comment outlines key terms in website accessibility caselaw to familiarize readers with the technological barriers faced by disabled individuals and current attempts by non-profit organizations to create comprehensive standards that remedy these barriers. Part three of this Comment provides an overview of the history and purpose of the ADA, with an emphasis on the two emerging perspectives on how the text should be interpreted. Part four delves into the application of the ADA to website accessibility claims. Part five provides an overview of Title II caselaw and part six gives an in-depth analysis of the circuit split in Title III caselaw. Part seven discusses the implications of website accessibility caselaw on businesses and individuals with disabilities, highlighting the insufficiencies of the current piecemeal litigation approach to securing rights. Lastly, part eight evaluates three potential remedies to the problem of website inaccessibility: (1) continued judicial interpretation, (2) promulgating regulations, and (3) amending the text of the statute.

II. The Digital Divide

A. Defining Website Accessibility

The World Wide Web Consortium13 defines "website accessibility" as the ability to perceive, understand, navigate, interact, and contribute to

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the web.14 In the context of anti-discrimination litigation, the term "website accessibility" describes a broad-based movement to remove intangible barriers to online platforms, so individuals with disabilities can access the online content available to non-disabled individuals.15 Common examples of these barriers include: lack of closed captioning on videos and audio content, insufficient color contrasting, and the inability to magnify text.16 For example, an individual who is legally blind or has low vision may rely on screen readers to access online content. Screen readers are software programs that translate online text into audio content or braille to help visually impaired individuals "read" the online text and navigate the webpage.17 Websites that lack headings, contain links with vague descriptors, such as "click here," or lack alternative text to describe images displayed on the page, make it increasingly difficult for individuals to navigate the webpage using screen reader software.18 The website accessibility movement focuses on removing these barriers. Most website accessibility claims address accessibility issues faced by individuals with vision-, hearing-, and mobility-impairments.19

B. Applicable Standards

The ADA is silent on the appropriate standards web developers should follow when creating online content. The ADA does not mention

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the Internet or websites. And the Department of Justice (Department)—the agency responsible for promulgating regulations under Titles II and III of the ADA—has also not published regulations on website accessibility.20 However, the Department has informally endorsed, and courts have occasionally adopted the Web Content Accessibility Guidelines (WCAG) as the appropriate standard for website accessibility.21 The WCAG are guidelines developed by the World Wide Web Consortium (W3C), to help web developers, businesses, and public entities create websites that are easily navigable for individuals with disabilities.22 Although no standard can perfectly outline the necessary components of website accessibility,23 the WCAG standards are detailed, comprehensive, and generally regarded as the gold standard for assessing whether a website provides equal access to individuals with disabilities.24 Nevertheless, while some courts have referred to the standards as a potential equitable remedy for violations of the ADA's accessibility requirements, not all courts have endorsed WCAG's adoption.25 As a result, there are currently no nationwide standards for businesses and public entities to reference with confidence that conformity to those standards will ensure compliance with the law.

III. History and Purpose of the ADA

The ADA is a sweeping statute, enacted to remedy the widespread discrimination faced by disabled Americans.26 A uniquely bipartisan bill, the ADA passed the House and the Senate by a wide margin.27

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When signing the Act, President George H.W. Bush referred to it as the "first comprehensive declaration of equality for people with disabilities," and "a powerful expansion of protections," and "basic civil rights."28 With these purposes in mind, Congress addressed three primary areas of discrimination, each reflected in a separate chapter of the ADA: Title I prohibits discrimination in private employment; Title II prohibits discrimination by public entities (i.e., state and local governments); and Title III prohibits discrimination in places of public accommodation (i.e., private businesses that offer commercial services to the public).29 Each chapter begins with a general anti-discrimination provision,30 and then lays out separate prohibitions against discrimination in a host of more targeted areas including physical access, eligibility requirements, and participation in activities.31

The ADA's main strengths are its "comprehensive character,"32 and its "clear, strong, consistent, enforceable standards."33 While these characteristics are often complementary, courts reach opposite conclusions regarding the application of the ADA to websites depending on whether they prioritize the law's comprehensive character or its clear, consistent standards.

On the one hand, the statute includes broad language and catch-all provisions to eliminate discrimination in a wide range of activities—illustrating the ADA's comprehensive character.34 Recognizing that Congress could not foresee every form and manifestation of discrimination, the statute was written to adapt to changing circumstances. As one Congressman put it, "the Committee intends that the types of accommodation and services provided to individuals with disabilities, under all of the titles of [the ADA], should keep pace with the rapidly changing technology of the times."35 The comprehensive

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nature of the statute suggests that evolving technologies, such as websites, should be included within the statute's mandate.36

On the other hand, the statute provides great detail on the specific entities covered, the actions necessary to satisfy the anti-discrimination provisions, and the consequences for non-compliance—illustrating the ADA's emphasis on specific standards.37 As one court put it, "[w]here Congress has created specifically enumerated rights and expressed the intent of setting forth 'clear, strong, consistent, enforceable standards,' courts must follow the law as written and wait for Congress to adopt or revise legislatively-defined standards that apply to those rights."38 Consequently, the Act's detail and specificity suggest that the...

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