The Americans with Disabilities Act, 104 Stat. 327 was enacted in 1990 and generally requires that persons that are disabled, defined as having “a physical or mental impairment that substantially limits one or more major life activities of such individual” (42 USCS § 12102) may not be “discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 USCS § 12182.  A “public accommodation” is defined in  42 USCS §§ 12181 requiring (1) that such entity affect commerce and (2) that such entity be in a list, which list is comprised entirely of businesses that have physical facilities, such as hotels and motels, restaurants and bars, theatres, auditoriums and convention centers, lecture halls, and include “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment…”

Courts have required businesses that have physical locations that are places of public accommodation to also make their websites ADA compliant. See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Ca. 2006). However, some courts have also determined that Web site services offered by businesses that are solely online and have no physical locations can be places of public accommodation. Gathers v. 1-800-Flowers.com, Inc., 2018 U.S. Dist. LEXIS 22230, 2018 WL 839381 (D. Mass. 2018) (flowers.com); Access Now, Inc. v. Blue Apron, LLC, 2017 U.S. Dist. LEXIS 185112, 2017 WL 5186354 (D. N.H. 2017) (blueapron.com).

Other courts, however, have ruled that the websites of even actual places of public accommodation are not required to be accessible:  Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir.), vacated as moot 21 F.4th 775 (11th Cir. 2021). Contrary to the Winn-Dixie case, at least one case has held that a restaurant’s Web site and mobile application was required to be accessible to comply with ADA, because of the obligation of the restaurant to provide auxiliary aids and services to customers while in the restaurant. Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir.), cert. denied, 140 S. Ct. 122 (2019).

One court summarized the cases, ultimately siding with what it described as the majority rule – that holds that a Web site alone, not connected to a physical location, is not a “place of public accommodation” – “Whether a website is subject to the ADA has occasioned a split of authority among the federal courts. There is broad agreement that a website is subject to the ADA if it operates as a gateway or nexus to a physical location. … Where the federal courts differ is on the precise issue before us: whether a stand-alone website is subject to the ADA. … The split of authority tracks a broader issue, which arose prior to the website cases; namely: Does the ADA apply only to physical locations open to the public? The federal courts have treated the answer to the broader question as determinative of the issue of websites.” Martin v. Thi E-Commerce, LLC, 95 Cal. App. 5th 521, 529 (2023).

So, if you offer a “software service” solely online, does your software have to comply with the ADA?  And if it does, how do you do it?

As to the first question, until the Supreme Court decides the split in cases, or Congress unambiguously amends the law, whether your service offered solely via a remote service has to comply with the ADA will largely turn on whether you can be sued in a jurisdiction where the courts have held that the ADA applies to all publicly available websites (the circuits where that appears to be the rule are the 1^st, 2^nd and 7^th – basically the Northeast and the Northern Midwest) or whether the plaintiff has to show some nexus to a physical business (those appear to be the 9^th and 6^th circuits – which is most of the west coast). A map of the circuits is available here.

Another factor is that you may be licensing your service to a company that itself has physical locations, or that contractually requires ADA compliance. Additionally, the functionality you offer may itself be used by companies that are required to be ADA compliant, so your software will need to be compliant in those cases.

What does “ADA compliant website” mean though?  The Department of Justice has noted that developers should reference the Web Content Accessibility Guidelines (WCAG) promulgated by the World Wide Web Consortium, commonly referred to as W3C.  See https://www.justice.gov/opa/pr/justice-department-publish-final-rule-strengthen-web-and-mobile-app-access-people (April 8, 2024).  While these rules apply to public entities (state and federal agencies and so forth), they are “reference” for private parties. The DOJ has not adopted WCAG as a regulatory requirement.

You can test any Web site for general compliance easily – using Chrome, or a Chromium based browser, open the Developer Tools, click on Lighthouse, and run a report.  For example, I ran a Lighthouse report on the above DOJ link. My tools are reporting that that the DOJ web page is 95% accessible. Its only failure noted was “[aria-*] attributes do not match their roles.” “ARIA” is a reference to Accessible Rich Internet Applications – and more specifically, is a set of standards to allow the development of more interactive and dynamic content for non-disabled persons, while allowing disabled persons to use screen readers to interact with those tools. See https://www.w3.org/WAI/standards-guidelines/aria/

The current WCAG guidelines (October 2023) are daunting, very dense, and very specific. The actual guides when I print them are 99 pages long including the notes and references. Thankfully a much shorter quick reference exists: https://www.w3.org/WAI/WCAG22/quickref/

Fully complying with the WCAG adds considerable development cost and effort for any modern website, and also affects maintainability and extendibility. However, it is an important concept and should be considered up front in all software development projects, especially those with rich interactive user interfaces. Fixing prior developed sites for WCAG compliance can be very expensive.

Do you have to 100% comply with WCAG?  While some plaintiffs have argued that a Web site must be fully WCAG compliant (Langer v. Pep Boys Manny Moe & Jack of Cal., 2021 U.S. Dist. LEXIS 8680, 2021 WL 148237 (N.D. Ca. 2021)(one video that was not closed captioned was asserted to violate the ADA)), it is not clear that the courts have viewed such failure, alone, as a violation. However, if the web site is in violation of the ADA, courts have held that a court can order a web site operator to comply with WCAG (e.g. Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9^th Cir. 2019)).

Failure to comply with the ADA for a Web site can cause significant potential liability; however, as shown above, even the agency charged with enforcing the ADA is not itself 100% compliant with WCAG (as of the date of this article).

For more information contact Mike Oliver.