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.[1] 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."[2] Target.com's
retail offerings were held to have a sufficient nexus with its brick
and mortar stores such that the plaintiff's claims survived a motion
to dismiss.[3] Until recently,
courts have generally held that Title III does not apply to web-only
services (such as Facebook or YouTube) because they do not have a
nexus with any physical location.[4] But in June 2012,
the U.S. District Court for the District of Massachusetts held in
National Ass'n of the Deaf v. Netflix, that Netflix's "Watch
Instantly" website was a public accommodation subject to the ADA
even though Netflix has no physical place of public accommodation.[5] The court
concluded that "[t]he ADA covers the services 'of' a public
accommodation, not services 'at' or 'in' a public accommodation".[6] The court found
"Congress did not intend to limit the ADA to the specific examples
listed in each category of public accommodations" and that the
Netflix website may fit within at least one (if not more) of the
categories listed in the ADA.[7]
In another case involving Netflix, in the U.S. District Court for
the Northern District of California, Cullen v. Netflix, the
court rejected the plaintiff's arguments, holding that it was bound
by Ninth Circuit precedent requiring a nexus with an "an actual
physical place" in order to trigger applicability of Title III.[8] Additionally, a
recent decision from the Central District of California indicates
that, even where a defendant has physical locations, a
"nexus" is not automatically created. In Jancik v. Redbox
Automated Retail, the court said that there was not a nexus
between Redbox retail kiosks and the "Redbox Instant" website,
holding that the "mere fact that the services are sold together does
not mean that they are 'heavily integrated' or that one is a
'gateway' to the other."[9]
DOJ Set to Unveil Long-Awaited Regulations
Unlike Title II of the ADA, which applies to government entities,
and provides detailed guidance as to what websites must do to comply
with the ADA,[10] there are currently no
such regulations under Title III.
To provide clarity in this area, the DOJ plans to issues new
regulations applicable to websites of private companies in March
2015. These regulations were originally planned to be released
earlier—in fact, the DOJ has postponed the issuance of the
regulations several times since July 26, 2010, when the DOJ issued
its Advanced Notice of Proposed Rule Making (ANPRM).[11] Although these
delays have been met with frustration by some members of the
plaintiffs' bar,[12] the DOJ, through its
recent enforcement efforts, has made clear its intention to extend
regulation of private websites.
The DOJ's ANPRM takes the position that many websites are places
of public accommodation under Title III, and states that the
proposed regulations are needed to ensure access to these websites
by disabled persons by providing clear guidance as to what the ADA
requires of websites. From the abstract to the ANPRM:
Increasingly, private entities of all types are providing
goods and services to the public through websites that operate as
places of public accommodation under title III of the ADA. Many
websites of public accommodations, however, render use by
individuals with disabilities difficult or impossible due to
barriers posed by websites designed without accessible features.
[…]
The ADA's promise to provide an equal opportunity for
individuals with disabilities to participate in and benefit from all
aspects of American civic and economic life will be achieved in
today's technologically advanced society only if it is clear to
businesses, educators, and other public accommodations, that their
websites must be accessible. Consequently, the Department is
proposing to amend its title III regulation to expressly address the
obligations of public accommodations to make the websites they use
to provide their goods and services to the public accessible to and
usable by individuals with disabilities under the legal framework
established by the ADA. The proposed regulation will propose the
scope of the obligation to provide accessibility when persons with
disabilities attempt to access websites of public accommodations, as
well as propose the technical standards necessary to comply with the
ADA.[13]
The DOJ-Peapod.com Settlement
On November 17, 2014, the DOJ reached a settlement with Ahold
U.S.A. Inc. and Peapod, LLC, the owner and operator of peapod.com,
an online grocery retailer.[14] This settlement
shows that the DOJ is looking closely at the accessibility of
websites and mobile apps and remains aggressive in its enforcement
efforts.
Unlike past DOJ consent decrees, which involve websites and
mobile apps that have a nexus to a physical place, the Peapod
settlement agreement requires that a website and apps with arguably
no nexus to a physical place be made accessible to the
disabled. The Peapod settlement foreshadows what the DOJ's
upcoming regulations may require. Three specific provisions of
the settlement are particularly noteworthy:
- First, the DOJ requires the companies to comply with WCAG 2.0
Level AA standards.[15] There are
three levels of conformance with WCAG guidelines: A
(lowest), AA, and AAA (highest). This may signal that the
DOJ views the AA guidelines as the appropriate regulatory
standard.
- Second, the settlement gives the companies until March 31,
2015, to make mobile applications accessible and until September
30, 2015 for the website. It remains to be seen what will
happen with DOJ enforcement and case law treatment of mobile apps
(which are increasingly becoming the preferred method of accessing
online content). Notably, there is virtually no mention of
smartphone apps and mobile devices in the proposed rulemaking.
- Third, the settlement requires the companies to take certain
steps to ensure that third-party content providers comply with the
proposed accessibility standards—but it also excuses noncompliance
if requiring a third-party to comply with the standards would
create an "undue burden."
Other Accessibility Issues to Watch in 2015
In addition to website accessibility, businesses should be aware
of other accessibility issues with newer technologies they
adopt. As one example, there was a wave of lawsuits earlier
this year filed against various retailers – including Bath &
Body Works, Build-A-Bear Workshop, Express, Office Depot, and
American Eagle Outfitters—alleging that updated point of sale
card-reading devices do not comply with the ADA. Specifically,
the lawsuits are based on the theory that the devices' flat touch
screens force blind customers to reveal their PIN numbers to
cashiers (as opposed to textured keys). As new technologies
continue to enter businesses and the workplace, companies should
consider the implications of any new technology from an ADA
compliance standpoint.
As we await more concrete guidance from the DOJ next March, all
retailers should carefully evaluate their websites' compliance with
the ADA. And—if the DOJ's recent settlement is any indication
of its future enforcement priorities and the potential scope of the
forthcoming regulations— even online-only businesses should take a
close look at website ADA compliance.
For any inquiries on these and other issues involving disability
access and accommodation and technology, please contact Joe
Liburt (650-614-7447 - jliburt@orrick.com),
Tim Long (916-329-7919 - tjlong@orrick.com), or Jill Rosenberg
(212-506-5215 - jrosenberg@orrick.com).
[1] 452 F.Supp.2d
946. [2] Id. at 954,
citing 42 U.S.C. § 12182(a). [3] National
Federation of the Blind v. Target Corporation, 452 F. Supp. 2d
946 (N.D. Cal. 2006). [4] Young v. Facebook,
Inc., 790 F. Supp. 2d 1110, 1113 (N.D. Cal. 2011) (granting
Facebook's motion to dismiss Title III claim because Facebook
"operates only in cyberspace" and does not have a nexus with a place
of public accommodation); Ouellette v. Viacom, 2011 WL
1882780 (D. Mont. 2011), adopted by 2011 WL 1883190 (D. Mont. 2011)
(allegations under the ADA "must establish a nexus between the use
of the Web site and an actual, physical place" and the sites in
question [including YouTube and MySpace] had no connection to a
physical location). [5] 869 F. Supp. 2d 196,
201 (D. Mass. 2012). [6] Id. [7]
Id. [8] Cullen v. Netflix,
Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012) (citing Weyer v.
Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114, (9th Cir.
2000)). [9] 2014 U.S. Dist. LEXIS
67223 (C.D. Cal. May 14, 2014) at *23. [10] Section 508 of the
Rehabilitation Act (29 U.S.C. 794d) provides detailed standards for
public websites based on access guidelines developed by the Web
Accessibility Initiative of the World Wide Web Consortium.
There is also an ADA checklist available to determine compliance
with Title II: http://www.ada.gov/pcatoolkit/chap5chklist.htm. [11] 75 FR
43460 [12] More
Delay for DOJ Web Regs – Does it Matter? (June 2, 2014) (available
at http://lflegal.com/2014/06/doj-delay/). [13] The ANPRM
and abstract are available here:
http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201404&RIN=1190-AA61. [14] The settlement is
available here: http://www.ada.gov/peapod_sa.htm. [15] "WCAG"
stands for Web Content Accessibility Guidelines, a widely-recognized
set of web accessibility standards. |