Digital Areas As Locations Of Public Lodging – Employment and HR

Important points

• The Americans with Disabilities Act (ADA) does not currently address whether websites are public accommodations that must be accessible for people with disabilities, and the courts are divided on this issue.
• On April 7, 2021, the Eleventh Circle decided that websites are not public accommodations.
• The Online Accessibility Act (HR 1100), reintroduced in Congress in February 2021, would include Title VI in the ADA to define websites and mobile applications as places of public accommodation and finally to give companies a certain level of security in this area.
• The proposed law includes provisions on administrative remedies, reporting of violations and enforcement through the Department of Justice (DOJ) or through private litigation rights.

In February 2021, Reps. Budd (R-NC), Hudson (R-NC) and Correa (D-CA) reinstated HR 1100, known as the Online Accessibility Act. Originally introduced in 2020, the law would amend the ADA to include an additional provision, Title VI: Consumer-Oriented Websites and Mobile Applications owned or operated by a private entity. Title VI would require that any consumer-facing website or mobile application “substantially conforms” to the Web Accessibility Standards (WCAG) 2.0 Level A and Level AA, or provide an equivalent alternative means of access for people with disabilities to the content available on the website. WCAG is a standard published by the non-profit World Wide Web Consortium, also known as the W3C. Many organizations consider WCAG 2.1 Level AA to be the current gold standard for accessibility in digital spaces.

overview

The ADA prohibits discrimination against people with disabilities in a number of areas. According to Title III, this prohibition generally means that “public accommodation” must be accessible to people with disabilities. Public accommodation includes restaurants, hotels, theaters, grocery stores, banks, pharmacies, retail stores, airports, museums, libraries, and parks, among others. When the ADA became law in 1990, the Internet was still in its infancy, so it is not surprising that Congress failed to foresee the need to include the accessibility of websites or other digital spaces in this law.

But by 2021, the internet will be a ubiquitous tool, allowing virtually all aspects of business and personal affairs to be done online. This reality begs the question: Can a digital space also be a “place” of public accommodation that needs to be made accessible? Many courts have grappled with this issue, with inconsistent results across circles. For example, in the ninth circle, a website with no connection to a physical location would not be considered public accommodation; the same website would be a public accommodation on the Seventh Circuit. Compare Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015) with Morgan v. Joint Admin. Vol., Ret. Plan from Pillsbury Co. & Am. Fed’n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456 (7th Cir. 2001). Most recently, on April 7, 2021, the Eleventh Circle ruled that websites are not public accommodations. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277 (11th Cir. 2021). The plaintiff’s application to the Eleventh District for a dress rehearsal is pending.

In the past, Title III claims have typically focused on physical barriers or impediments. In recent years, plaintiffs have been arguing that an inaccessible website, incompatible with, for example, screen reader technology commonly used by the visually impaired, is a barrier that discriminates against people with disabilities – and many of those claims have succeeded. For example, the Court in the Central District of California’s Ninth District recently issued a summary judgment to a plaintiff and found an ADA violation if the plaintiff was unable to order pizza from Domino’s website or app using screen reader technology. Robles v. Domino’s Pizza, LLC, No. CV 16-6599 JGB (Ex) (CD Cal. June 23, 2021). In a further refinement of the Ninth Ward’s position on whether a website can be a place of public accommodation, the court also dismissed Domino’s argument that the franchise ownership model was the “connection” between the franchisee’s stationary locations and the inaccessibility of the franchisee Franchiser breaks website and app.

Under the current legal framework, a plaintiff can, with few exceptions, bring an action for alleged violation of the ADA without warning and without exhausting administrative legal remedies. Due to open legal issues and a lack of regulatory guidance from the Department of Justice, defending these claims can be difficult and costly. In addition to alleging an ADA violation, many plaintiffs also allege violations of supplemental state or site-specific accessibility laws. Some state laws, such as those in California and New York, are even more beneficial to plaintiffs. The ADA and many of these state laws give the plaintiff an injunction (that is, for the organization to bring the site into material compliance with an accessibility standard), as well as legal fees and possibly additional fines or damages.

This means a company may not know that their website is non-compliant until legal proceedings are on their doorstep. At this point, it may have no choice but to quickly correct its website to the plaintiff’s satisfaction and pay compensation to the plaintiff for her legal fees. Additionally, whether or not a website is even a public lodging facility subject to the ADA may likely depend on the jurisdiction in which the plaintiff is filing the lawsuit.

What Title VI would change

The law would require a person to take the following steps before they can file a civil action under federal law:

• First, to inform the owner or operator of a website or mobile application that it does not comply with WCAG 2.0 Level A and Level AA;
• If the owner or operator does not comply with the website or mobile application within 90 days of receiving this notice, the individual can file a complaint with the DOJ;
• The DOJ will complete an investigation within 180 days to determine if there has been a violation; and can then file a civil lawsuit.

If the DOJ has not initiated a civil action following this procedure, an individual has exhausted all administrative remedies and is free to bring a civil action. This law was not passed in 2020 and appears to be doomed again in 2021.

What that means for you

As in many areas of law, the best defense is a good offense. When asked, most companies would unreservedly agree that availability for all customers and potential customers is good for business. Rather than waiting for a seemingly inevitable lawsuit, it is always beneficial for an organization to verify that their website is essentially up to an accessibility standard like WCAG 2.1 AA and, if not, take steps to begin publishing it in accordance. Businesses would be well served if the federal government finally gave certainty about the applicable standards and resolved the division of the courts, be it through the passage of the Online Accessibility Act or similar laws, through a decision of the US Supreme Court, or otherwise.

Originally published by Legal practice today.

The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.