Websites and mobile applications: do they comply with Title III of the Americans with Disabilities Act?

• Author: Briggs, Benjamin S.

Some are calling the new wave of cases challenging the accessibility of commercial and public websites and mobile applications (apps) the new civil rights movement. The authors like to call it the silent civil rights movement, as most practitioners are unaware that their websites and apps --as well as those of their clients--may violate the ADA. In particular, the websites and apps (collectively referred to as "web technologies" in this article) of law firms and their private sector clients may violate Title III of the ADA, which is the focus of this article.

Background: Disabilities Affecting Internet Use and the Legal Implications

According to the U.S. Department of Justice (DOJ), millions of individuals in the United States have disabilities that affect their use of web technologies. (1) For instance, individuals with vision impairments may be unable to read the text or view images or videos displayed on web technologies; those with hearing impairments may be unable to obtain information from videos lacking captions; those with mobility impairments regarding their hands may be unable to navigate a web technology; and those with intellectual impairments may struggle to use portions of web technologies that require timed responses from users. Many people with disabilities rely on "assistive technology" to navigate web technologies and access the information and services provided therein. For example, a screen reader can convert the visual information on a web technology into speech (i.e., speak aloud the written text), and speech-recognition software can allow those with mobility impairments to navigate web technologies. However, many web technologies are not designed in a manner that is compatible with assistive technology or are otherwise inaccessible to individuals with disabilities.

Multiple federal and state laws may be implicated when web technologies are not equally accessible to disabled individuals. Most prominent among the federal laws are the Americans with Disabilities Act of 1990, 42 U.S.C. [section][section] 12101-12213 (ADA), and the Rehabilitation Act of 1973, 29 U.S.C. [section] 701, et seq. (Rehab Act). The ADA prohibits discrimination against individuals with disabilities (2) in all areas of public life, including employment, education, transportation, and all public and private places that are open to the general public. (3) Title I of the ADA prohibits disability discrimination in the realm of employment, while Titles II and III of the ADA govern accessibility standards and protect disabled individuals' access to facilities, goods, services, privileges, etc. (4) Title II applies to state and local government entities and agencies, whereas Title III applies to private entities that are places of public accommodation. The Rehab Act requires that the web technologies of federal government entities, federal contractors, and recipients (public and private) of federal funding be equally accessible to disabled individuals. (5)

This article focuses on the web technologies of private sector businesses under Title III of the ADA. However, it is worth noting that a disabled job applicant may possibly have a Title I employment discrimination claim against a prospective employer that utilizes an inaccessible website to advertise employment opportunities and receive application materials, and an employer that requires disabled employees to use inaccessible internal digital technologies to perform their jobs may also be liable under Title I; (6) and any governmental entity (local, state, or federal) or recipient of federal funding may be liable under Title II of the ADA and/ or the Rehab Act for inaccessible web technologies. (7)

General Overview of Title III of the ADA

Title III applies to any private entity that is considered a "place of public accommodation." Private entities are considered places of public accommodation under Title III if their operations affect commerce (8) and fall within at least one of the following 12 categories:

(A) An inn, hotel, motel, or other place of lodging;

(B) A restaurant, bar, or other establishment serving food or drink;

(C) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D) An auditorium, convention center, lecture hall, or other place of public gathering;

(E) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) A laundromat, drycleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) A terminal, depot, or other station used for specified public transportation;

(H) A museum, library, gallery, or other place of public display or collection;

(I) A park, zoo, amusement park, or other place of recreation;

(J) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; or

(L) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. (9)

Although this is an exhaustive list of the categories of places of public accommodation, the representative examples within each category are not exhaustive. (10) Moreover, the 12 categories "should be construed liberally to afford people with disabilities equal access to the wide variety of establishments available to the nondisabled." (11)

Title III broadly prohibits disability discrimination with regard to places of public accommodations: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." (12)

Title III's Application to Web Technologies

There are two prominent lines of decisions addressing web technology accessibility under Title III: 1) Courts holding that places of public accommodation are limited to physical locations and that Title III requires a nexus between an actual physical structure and the goods, services, or privileges provided via web technologies; and 2) courts holding that 2places of public...