February 2015 Bar Bulletin
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February 2015 Bar Bulletin

The Internet and ADA:

The Right to Equal Enjoyment of the Web

By Krista L. Nelson and Aviva Kamm

 

Since Congress enacted the Americans with Disabilities Act (ADA) in 1990, the Internet has profoundly changed the personal and professional lives of individuals in the United States. A large percentage of persons with disabilities use the Internet at work and at home,1 and consumers with disabilities represented $200 billion in discretionary spending in 2010, according to a U.S. census report.2 Yet, while individuals and companies today conduct a considerable amount of their daily business online, many websites still lack features that enable persons with disabilities to equally access information and services on the Web.

Many pages lack video or other multimedia presentation captions that enable a deaf person to access information, do not allow users who have visual impairments the option to adjust font size or color contrast, and do not allow users the option to request more time to respond to time-sensitive features. A person who is blind might use a screen reader to access web pages, while a person with limited dexterity might use a keyboard alternative when browsing online.

But many websites do not allow screen readers or other assistive technologies to retrieve information, most often because they fail to include corresponding text that describes what an image conveys. Similarly, many websites do not support keyboard alternatives to mouse commands, such as tab commands that allow users to scan pages without a mouse.

Large companies such as Charles Schwab, Hilton Worldwide, Target and Southwest Airlines have been the target of increasing litigation surrounding website accessibility. Similarly, the Department of Justice (DOJ) has taken an increasing interest in ensuring that goods and services offered online are equally accessible to persons with disabilities; indeed, for years, the DOJ has considered websites places of public accommodation under Title III of the ADA. Under the ADA's mandate for "full and equal enjoyment," places of public accommodation must not discriminate in the offering of goods and services, including those offered online.3

While the DOJ's interest in website accessibility is longstanding, it has recently taken affirmative steps to ensure that people with disabilities have equal access. In 2010, the DOJ sought public comment regarding the development of its proposed website accessibility regulations. The regulations would apply to public accommodations that provide products or services to the public through websites on the Internet.4

The regulations would not apply to personal individuals, nor would they require public accommodations to ensure that websites linked to their websites - but which the entity does not operate or control - are accessible. However, if a site requires patrons to use another website to take part in its goods or services - perhaps by requiring payment processing on another website - the entity could be liable even if it does not operate or control the site.

While some federal courts have held that there must be a nexus between a challenged activity and a private entity's "brick-and-mortar" facility to obtain coverage under Title III,5 the DOJ's proposed regulations would apply even if an entity operates exclusively online.

The DOJ has delayed its target date for the regulations - now set for June - several times. But in the meantime, the DOJ has not hesitated to investigate alleged violators. In fact, the DOJ indicated it will continue to enforce ADA website accessibility on a case-by-case basis until the issue is addressed in a final regulation.6


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