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Employment Blog

Company Websites May Tangle Up Employers in ADA Liability

Authored by Ruder Ware Attorneys
Posted on February 8, 2016
Filed under Employment

Does your company’s public business website create liability under the ADA?  The short, lawyerly, answer is—“it depends.”  Plaintiffs’ lawyers across the country are seizing upon Title III of the ADA [Places of Public Accommodation] as a basis for making threatening demands and filing lawsuits based on the claim that publicly-accessible business websites do not provide access to individuals with disabilities—i.e., those who are deaf or blind [for example, a website may not be encoded in a manner to allow blind individuals to use “screen reader” software that converts webpage text to audio or Braille].   The central question in these lawsuits is whether a website is a “place of public accommodation” under the purview of the ADA.  My previous, “it depends” comment is appropriate because courts are divided in their decisions concerning whether a website qualifies as a place of public accommodation.  Some courts have answered that question in the affirmative—like the federal Seventh Circuit Court of Appeals [which hears cases impacting businesses in Wisconsin, Illinois and Indiana], which held that Title III of the ADA covers electronic spaces too—while other courts have held that places of public accommodation are limited to physical locations such as brick-and-mortar buildings.  Other courts have required a “nexus” between the website and the specific services or products offered at the corresponding brick-and-mortar location, further adding to the confusion.   

The federal Department of Justice has been promising regulatory guidance and clarity on this very issue for years—and was supposed to publish those regulations in 2016.  However, those regulations have now been pushed to 2018, creating more uncertainty and opportunities for businesses to be sued.  This uncertainty prompted a group of US Senators to draft a letter in December 2015 urging regulators to complete the regulatory review process and put concrete guidelines in place to assist businesses in their compliance efforts.  Although small businesses may resort to the “undue burden” or “fundamental alteration” defenses when facing scrutiny, these defenses are not easily demonstrated and can be costly to raise. 

Let’s face it, this conundrum is not going to go away—at least while we have the internet.   This issue may ultimately find its way to the Supreme Court.  We’ll keep you posted on developments in this area.