The Next Frontier in ADA Litigation: Website and App Access for the Disabled, by Joe Libert, Tim Long, and Jill Rosenberg, Orric, Herrington & Sutcliffe LLP
For the last several years, consumers have increasingly turned to online shopping as an alternative to traditional ‘brick and mortar’ stores. Some reports showed that ‘Cyber Monday’ sales figures beat out those for ‘Black Friday’ this year, and many retailers are doubling down on their eCommerce efforts in response. What many retailers might not be aware of is the growing risk of litigation under the Americans with Disabilities Act (ADA) and derivative state laws arising from websites or mobile apps that allegedly discriminate against disabled individuals.
Although there has been more than a decade of litigation on this issue, basic questions have remained muddled, including whether Title III of the ADA (which requires access to places of public accommodations to disabled individuals) applies to websites. Recent developments in case law, new proposed regulations by the Department of Justice (DOJ) slated for March 2015, and a noteworthy recent DOJ settlement with an online grocery service, all indicate that this will be an area to watch in 2015.
Title III and Private Employer Websites
Although there is no consensus among courts, some recent cases have held that Title III applies to websites, while several earlier cases held that it did not.
Even courts that have held that a website is not a ‘public accommodation’ under Title III have recognized that an exception exists where there is a ‘nexus’ between the website and a physical place of public accommodation, such as a brick and mortar store. For example, in National Federation of the Blind v. Target Corporation, the plaintiffs filed a class action lawsuit against Target, alleging that its website was inaccessible to blind individuals. Target argued that the website was not a place of public accommodation, and that plaintiffs had not alleged denial of access to the brick and mortar stores. The court rejected this argument, noting that ‘it is clear that the purpose of the statute is broader than mere physical access—seeking to bar actions or omissions which impair a disabled person’s ‘full enjoyment’ of services or goods of a covered accommodation.’ . . .