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Many lawsuits and proposed regulations rely on the federal Americans with Disabilities Act of 1990 ("ADA"), a civil rights act meant to end discrimination against those with disabilities. While the ADA mentions places of public accommodation, the rapidly evolving digital landscape and importance of websites in conducting every day business create an argument that websites should be considered public accommodations.
The ADA is made of three titles:
The Rehabilitation Act of 1973 contains two sections, Section 504 and Section 508, addressing discrimination on the basis of disability and requiring accessibility of electronic and information technology for federal programs and agencies.
Many states have implemented civil rights laws that expressly prohibit discrimination on the basis of disability. These laws are also cited in the website accessibility cases that are filed at the federal district court level. Below are a few examples of state and local civil rights laws that have been referenced in recent cases in the Second and Ninth Federal Circuits:
California's Unruh Civil Rights Act
New York State Human Rights Law
New York City Human Rights Law
New York State Civil Rights Law
Please note: This is NOT an exhaustive list. Refer to your state and local codes for more information.
In 2023, the Act Against Abusive Website Access Litigation went into effect in Kansas. The law came about as a result of excessive numbers of frivolous lawsuits surrounding ADA compliance on websites.
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Thousands of website accessibility cases are filed in the federal courts each year. Absent specific web accessibility guidelines, courts are split on whether the ADA applies to websites and if it does, what compliance with the ADA means for the digital space.
Brintley v. Aeroquip Credit Union in the 6th Circuit discusses whether a plaintiff suffers an injury under Title III through use of a website.
Doe v. Mutual of Omaha Insurance Company in the 7th Circuit cites a 1st Circuit case (Carparts Distribution Center, Inc. v. Automotive Wholesalers' Ass'n of New England, Inc.) in stating that the ADA Title III would also apply to websites.
Robles v. Domino's Pizza, LLC in the 9th Circuit is a landmark case that held that the ADA does apply to websites.
Gil v. Winn-Dixie in the 11th Circuit is another landmark case that held that the ADA does not apply to websites. However, this case has had some negative treatment since the ruling.
* As new cases are filed daily, the above list is not meant to serve as the most up-to-date case law in any given jurisdiction. This is a rapidly developing area of law and you should consult your attorney for what the current legal requirements are in your state.
Accessibility may also be implicated in Regulation Fair Disclosure (Reg FD), the SEC regulation that requires simultaneous disclosure. Having an inaccessible IR website, filings, or press releases could mean not simultaneously disclosing material information to potential investors or stakeholders with disabilities.
Read Regulation Fair DisclosureWebsite accessibility has also been in the spotlight within the Department of Justice (DOJ) through recently issued guidance and rulemaking, Dear Colleague Letters, and even settlements with companies.
In 2022, the DOJ released guidance on website accessibility requirements and best practices. In this guidance, the DOJ takes the position that the ADA extends to all services that are open to the public, including those offered online.
In 2023, the DOJ announced that it will be writing rules for website accessibility relating to Title II of the ADA. Experts have predicted that Title III regulations will follow.
In April 2023, the DOJ issued a Dear Colleague Letter to communicate the requirements around accessible communications with patients in the healthcare section. This letter cites both Title II and Title III of the ADA.
Read DOJ healthcare Dear Colleague Letter
In combination with the Department of Education, the DOJ released a Dear Colleague Letter to universities. This letter communicated the requirements of universities to maintain accessible online services, programs, and activities.
In 2021 and 2022, the DOJ engaged in settlements with several public and private companies as a result of their inaccessible websites and customer portals. These settlements required the companies to remediate their existing websites to meet website accessibility standards and to maintain accessible websites moving forward.
In 2023, U.S. Senator Tammy Duckworth of Illinois introduced the Websites and Software Applications Accessibility Act in the U.S. Senate. This signals that website accessibility is becoming a national conversation. U.S. Representative John Sarbanes also introduced an identical bill in the House of Representatives in 2023.
In 2023, U.S. Senator Edward Markey of Massachusetts introduced the Communications, Video, and Technology Act in the U.S. Senate. This bill discusses specific requirements around media and communications services. U.S. Representative Anna Eshoo also introduced an identical bill in the House of Representatives in 2023.
In 2023, U.S. Representative Ken Calvert introduced the ACCESS Act in the U.S. House of Representatives. This bill directs the Department of Justice to study certain web content accessibility standards and develop a program to educate state and local governments and property owners on strategies to promote ADA compliance.
In 2023, U.S. Representative Lori Trahan introduced the TLDR Act in the U.S. House of Representatives. This bill directs the Federal Trade Commission to issue a rule requiring all businesses that maintain a website for commercial purposes to post an accessible summary of their Terms of Service on their website. U.S. Senator Bill Cassidy introduced an identical bill in the U.S. Senate in 2023.
In 2023, Assembly Bill 1757 was introduced in the California legislature. This bill set out specific requirements for businesses, referencing the Web Content Accessibility Guidelines.
Accessibility language can be found in state privacy laws as well. Several laws require certain pages on a website to be accessible. Below are several state privacy bills with accessibility language, listed by effective date.
In 2023, U.S. Representative Anna Eshoo introduced the Online Privacy Act in the U.S. House of Representatives. This bill contains much of the same language surrounding accessible webpages that the state privacy laws have.
Read the Online Privacy ActThe Web Content Accessibility Guidelines (WCAG) are the industry standard guidelines for website accessibility. The WCAG is referenced in the DOJ 2022 guidance, recently introduced legislation, and in numerous court cases.
The latest version of the WCAG is 2.2.
This page is not intended to serve as legal advice. Each situation is different. You should consult with your counsel to determine whether you may be subject to these laws and how best to proceed.
Additionally, while we make every effort to maintain this page with current information, this is a rapidly developing area of law. Some information may be out of date. Please consult your legal counsel to determine what current laws you may be subject to.
Last updated: August 22, 2023
