Here’s a question that still baffles many… years after passing the ADA Compliance laws. Answers range from a straight no with caveats, to “it’s a grey area” with much room for interpretation, to “it depends.” The reason for this is that when the legislation was passed in 1990, websites were few and far between, so the law did not really stipulate for them.
Updates, especially in the form of WCAG (Web Content Accessibility Guidelines), and further addenda to legislation, standards, and best practices made it abundantly clear that, at first, the Americans with Disabilities Act was primarily geared at local and state government websites.
Accessibility Lawsuit Extravaganza
However, this changed in 2016, when the Department of Justice (DOJ) started addressing web accessibility, although no guidance was ever issued. Reality is stubborn as a rock and the gauntlet of plaintiff-led civil lawsuits is coming down strong lately, with a phenomenal 177% rise only from 2017 to 2018, that’s from 814 to 2258 suits filed. Not only has the number of companies served grown, the profile of said firms, organizations and brands is ever-expanding with the passing of the years since 2017: restaurants (Pitch Pizzeria), supermarket chains (Winn Dixie), educational hubs (College of Saint Rose), digital firms (Gimlet Media), luxury products, services and experiences (Fenty Beauty, a joint venture between Rihanna and LVMH), etc.
So, again, it begs the question:
Do all websites need to be ADA compliant?
Going by court mandates up to this date, not all, but a fair share.
Here’s a simple rule of three:
1. Yes, when a business website is deemed a “place of public accommodation” (Title III).
2. Yes, for all businesses that have a physical location that serves the public.
3. Yes, if there’s anything remotely commercial about a business’ website…that is, if money is being traded.
You’ll be definitely walking and taunting a jagged edge if you stick to humming the ole’ song refrain ‘ADA does not specifically address websites and therefore does not apply’.
Chris Rivenburgh is an attorney working as Chief Accessibility & Legal Officer at Essential Accessibility. But most importantly for the matter at hand, he’s the founder of Accessible.org and the author of The ADA Book. He is continuously researching ADA website compliance and accessibility issues and developments and therefore a prime source. Writing for Accessible.org and Medium.com, he has advised of the following legal consideration when addressing ADA compliance on your website and concern.
- o ADA is a strict liability law. This means you cannot allege ignorance, working on it as we speak, or any defense or excuse for violations.
- o Parallel state court lawsuits are also on the rise, seeing how they are affording plaintiffs steeper amounts in damages than other courts.
- o Lawsuits are combining with other anti-discrimination legislation to make their case even more bullet-proof. And it’s working!
- o Mythbusting: Having fewer than 15 employees DOES NOT EXEMPT you from ADA compliance if your website and business are deemed a place of public accommodation.
He also laid out a list of 12 business/organization categories deemed places of public accommodation by the ADA.
- 1. Inn, hotel, motel, or other place of lodging. Except if it’s in a building with fewer than five rooms for rent or hire, and if the proprietor uses it as his/her main residence;
- 2. Restaurant, bar… any establishment serving food or drink;
- 3. Exhibition entertainment operations, such as a motion picture house, theater, concert hall, stadium, or similar;
- 4. Auditorium, convention center, lecture hall, or other places of public gathering;
- 5. Bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
- 6. Laundromat, dry-cleaner, 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;
- 7. Terminal, depot, or other station used for specified public transportation;
- 8. Museum, library, gallery, or other place of public display or collection;
- 9. Park, zoo, amusement park, or other place of recreation;
- 10. Nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
- 11. Day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
- 12. Gym, health spa, bowling alley, golf course, or other place of exercise or recreation.
Since you or your lawyers are highly unlikely to address (or win) a legal battle from a technical standpoint, practicality demands that you make your website accessible. It will avoid legal nuisance and is also the right thing to do. Bottom line.