NO REGULATIONS AND INCONSISTENT STANDARDS: HOW WEBSITE ACCESSIBILITY LAWSUITS UNDER TITLE III UNDULY BURDEN PRIVATE BUSINESSES.

AuthorStuy, Lauren

CONTENTS INTRODUCTION I. TITLE III OF THE ADA AND WEBSITE ACCESSIBILITY A. ADA Background B. Businesses Victim to "Surf-By" Lawsuits Under Title III of the ADA II. CIRCUIT SPLIT ON WHETHER A BUSINESS'S WEBSITE REQUIRES A PHYSICAL LOCATION TO BE A PLACE OF PUBLIC ACCOMMODATION UNDER THE ADA A. The Independent Perspective: First, Second, and Seventh Circuits B. The Nexus Perspective: Third, Sixth, Ninth, and Eleventh Circuits III. THE ABSENCE OF WEBSITE ACCESSIBILITY STANDARDS A. DOJ's Failure to Address Website Accessibility Standards B. Website Accessibility Standards Issued by Courts IV. BUSINESSES FACE UNFAIR BURDEN TO COMPLY WITH UNKNOWN Website Accessibility Standards A. Unknown Financial Costs to Implement Accessibility Features B. Businesses Open to Liability Even if Currently Trying to Remediate CONCLUSION Introduction

We live in a world of constant tweeting, social media posting, email checking, fact Googling, Netflix hinging, swiping right, and online shopping. In fact, most Americans spend as much time online as a fulltime job; over forty hours are spent per week on their smartphones, desktops, laptops, and other streaming devices. (1) And while many people take the Internet for granted, as many as 26.5 million Americans with visual or auditory disabilities face difficulties accessing the websites of private businesses. (2) Website accessibility for disabled persons has recently become a hotbed for litigation under the Americans with Disabilities Act (ADA), which requires certain businesses to comply with standards that allow disabled persons equal access to products and services. While businesses have clear guidance as to what those standards mean in the physical world, the ADA is silent on how, exactly, those standards translate to the digital world. In the absence of such clear standards, businesses are exposed to continuous liability for failure to comply with website accessibility. For businesses, those 26.5 million Americans with visual and auditory disabilities translates to 26.5 million potential plaintiffs who could bring a website accessibility action against them.

For a website to be accessible to an individual with a visual impairment, the website must be coded to integrate with the individual's screen reader. (3) Deaf or hard-of-hearing individuals rely on closed captioning coding for audio files. (4) In theory, this seems like a simple enough task. But the implementation of the ADA into the digital world has been fraught with confusion. The practical reality of making websites accessible to those with visual and auditory impairments is a legal minefield with unarticulated accessibility standards, a circuit court split, and significant financial costs for businesses.

When the ADA was passed in 1990, the Internet was in its infancy; Congress did not include regulatory guidance for websites as it did for physical structures. (5) Websites are not mentioned anywhere in the ADA regulations and the Department of Justice (DOJ) has provided little guidance in this area of law. Now, plaintiff firms are storming the courtrooms in ever-increasing numbers to take advantage of the opportunity this gap in the current law presents. (6) The number of website accessibility lawsuits hit at least 2,258 in 2018, a 177% increase from 814 such lawsuits in 2017. (7) Without clear website accessibility standards in effect, this trend is unlikely to stop any time soon. (8)

As the website accessibility debacle has landed in the laps of federal judges, courts are tasked with two main questions. First, does a website of an ADA-covered business qualify as a "place of public accommodation" within Title III of the ADA? Answering this question is tricky, especially when addressing web-only businesses without a traditional storefront or physical location. Circuit courts are split over whether a website needs a nexus to a physical structure to qualify as a place of public accommodation under Title III of the ADA.

If the ADA does apply to the website, the next question is: does the website violate the ADA? Despite millions of Americans--on both sides of the "v"--being affected by this question, the DOJ has failed to issue formal website accessibility standards. (9) Because there is not one official source of website accessibility standards, businesses that operate nationally or across several states are left with inconsistent obligations piecemealed together from the different jurisdictions. (10)

This Comment explores the tension between the burden that undefined website accessibility standards place on private businesses and the need for disabled Americans to have full access to websites. Part I provides an overview of Title III of the ADA and how Title III relates to website accessibility standards. Part II examines the circuit split on whether a plaintiff alleging a Title III violation on a website's accessibility must demonstrate a nexus between the website and a physical location. Part III discusses the absence of clear website accessibility standards. Part IV explores the burden businesses face trying to comply with inconsistent standards, arguing that in light of the inconsistent standards across the country, businesses face an undue burden to attempt ADA compliance for their websites.

  1. TITLE III OF THE ADA AND WEBSITE ACCESSIBILITY

    1. ADA Background

      In 1990, Congress passed the Americans with Disabilities Act (ADA) "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (11) Congress later amended the Act in 2008 to broaden the coverage for individuals protected by the law. (12)

      An individual with a disability alleging that a private business's website is inaccessible would file suit under Title III of the ADA. (13) To state a claim under Title III, a plaintiff must allege: (1) that she is disabled within the meaning of the ADA; (2) that the defendant owns, leases, or operates a place of public accommodation; and (3) that the defendant discriminated against the individual by denying her a full and equal opportunity to enjoy the services or goods that the defendant provides. (14) Under the ADA, a successful plaintiff cannot recover damages, but the plaintiff may recover "reasonable attorneys' fees." (15) Injunctive relief is also available if the discrimination includes "a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities ... where such removal is readily achievable." (16)

      As a general rule, Title III requires "places of public accommodation," or private businesses whose operations affect commerce, to provide individuals with disabilities equal access to and an equal opportunity to enjoy "goods, services, facilities, privileges, advantages, or accommodations." (17) Businesses covered by the ADA must employ fifteen or more individuals, be open to the public, and fall into at least one of the twelve broad categories enumerated in the ADA: hotels, restaurants, places of entertainment, public gathering locations, sales establishments, service establishments, public transportation locations, places of public display or collection, recreational facilities, educational facilities, social service centers, and exercise facilities. (18) Notably, Congress did not list "websites" in any of the categories in the original Act or in the subsequent 2008 amendment. (19)

      Congress defined discrimination in Title III as a "failure to take such steps" so a disabled individual is not treated differently than others or excluded because of the "absence of auxiliary aids and services." (20) The business is exempt from compliance if the business can show that taking these steps would either "fundamentally alter" the nature of the "goods, service, facility, privilege, advantage, or accommodation" or result in an "undue burden." (21)

      The ADA delegates authority for implementing regulations to the DOJ. (22) Federal regulations explain that the ADA obligates public accommodations to communicate with customers who have visual or hearing impairments. (23) Regulations also provide "examples" of "auxiliary aids and services" as a "screen reader software" and "other effective methods of making visually delivered materials available to individuals who are blind or have low vision." (24)

    2. Businesses Victim to "Surf-By" Lawsuits Under Title III of the ADA

      Website accessibility lawsuits, dubbed "surf-by" lawsuits, have risen in recent years. (25) But why? While the ADA does not allow plaintiffs to recover compensation, their attorneys can. (20) That financial motive encourages plaintiff firms to search for accessibility issues on businesses' website by "surfing" the web. These surf-by lawsuits parrot the classic ADA "drive-by" lawsuits, where disabled individuals drive from business to business in search of minor ADA violations to sue over. Instead of a car, however, plaintiff firms here use their mouse to click from page to page in hopes of finding an inaccessible website.

      Not only are these website accessibility claims easy to identify, they are also easy to file. Most of these "surf-by" lawsuits include boilerplate complaints with cut-and-paste language. (27) These simple complaints cost the plaintiff firm minimal time and resources. (28) Between a circuit court split and a hodgepodge of standards from different district courts across the country, many defendant companies try to settle out of court to keep litigation costs down. (29) Ultimately, the costs of these lawsuits are passed on to consumers. (30)

  2. CIRCUIT SPLIT ON WHETHER A BUSINESS'S WEBSITE REQUIRES A PHYSICAL LOCATION TO BE A PLACE OF PUBLIC ACCOMMODATION UNDER THE ADA

    Federal circuits disagree on whether a plaintiff alleging a website compliance violation under demonstrate a nexus between the website and a physical location for the ADA to apply. (31) Courts in the First, Second, and Seventh Circuits have held that the...

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