Website and digital accessibility in the United States is regulated primarily under theories of those platforms being “places of public accommodation.” As such, under the federal Americans with Disabilities Act and similar state laws, platform operators have faced exposure if the platform’s design might restrict access for those with disabilities. Steps taken to address the upcoming EU Accessibility Act can also help minimise risk in the US.
The world of digital accessibility in the United States follows a patchwork approach, with a diversity of federal and state laws being used against companies that have allegedly failed to provide digital accessibility. This mirrors other legal regimes, such as those governing privacy and data security.
At a federal level, the Americans with Disabilities Act requires that disabled individuals be provided equal access to “places of public accommodation.” As discussed below, this has been interpreted to apply to websites, mobile applications and digital platforms. And, for government agencies under Title II of the ADA, the Department of Justice issued specific rulemaking intended to ensure accessibility in the digital realm.
At a state level, there are ADA-like laws, like California’s Unruh Civil Rights Act. Finally, companies can potentially face exposure under theories of deception or unfairness if not providing equal access to public places, including websites. For example, saying that a site is “open and accessible” when it isn't (a deception claim), or making it impossible for someone to access (an unfairness argument).
When analysing their obligations in the US, companies will find that this patchwork results - from a practical perspective - in taking many of the same steps needed for compliance with the upcoming EU Accessibility Act.
The Americans With Disabilities Act and similar state laws
Title III of the Americans with Disabilities Act prohibits discrimination on the basis of a disability in places of public accommodation. In other words, private spaces that are open to the public, like restaurants, stores, sports stadiums, and more. The law requires, among other things, that those operating these places provide “integrated settings.” They must also, under the ADA, ensure that people are not denied access, and must remove architectural barriers that could restrict access to existing facilities. In California, a similar law exists, the California Unruh Civil Rights Act. While both laws are similar, there are some differences, notably that the Unruh Act provides for statutory damages ($4,000).
Digital spaces as places of public accommodation: case law interpretation
When websites first gained popularity, those with visual and/or hearing impairments (communication disabilities) who had difficulty accessing them turned to these laws to seek relief. They argued that the websites were places of public accommodation, and should therefore be accessible. Courts have agreed, noting that the laws did not indicate if a “place” needed to be physical or could also be virtual. As the laws provide a private right of action, as the internet grew, so did accessibility lawsuits.
There has been a split approach in the US circuits, however, over the extent to which the sites need to have a “nexus” to a physical space. In some jurisdictions, like the Ninth Circuit (which includes California), successful plaintiffs have needed to point to the digital platform’s nexus to a physical space. For example, in Nat’l Federation of the Blind v. Target Corp., the court highlighted the fact that someone shopping at Target might need to go to target.com to take full advantage of the physical environment.
In more recent cases, a blind plaintiff sued Domino’s Pizza, arguing that he could not order pizza through the company’s app. In another California case, a visually impaired restaurant patron sued when she was unable to access the restaurant’s menu online. This approach was supported by a decision by the California Court of Appeals, holding that the plaintiff had not established that the website in question constituted a place of public accommodation.
Elsewhere, including the Second (covering New York) and Seventh (covering Illinois), courts have found that a website might be a place of public accommodation, even without a physical nexus. For example, in a New York case, the plaintiff, a visually impaired art supply store shopper, found success when he was not able to access the online-only company’s website. In one notable 2012 case, attempting to push the digital-physical boundary, the National Association of the Deaf sought to have Netflix include closed captioning, arguing that failing to do so was an ADA violation, even though Netflix had no physical presence. The case was settled before the court could rule substantively (Netflix did agree to include close captioning).
US law does not codify “digital” accessibility requirements in the same way as the EU
The US Department of Justice, which is responsible for rulemaking under the ADA, considered - but ultimately rejected - making rules for general businesses outlining how to make sites accessible under the ADA. It has, though, long taken the position that a website should be accessible if operated by an entity that offers a place of public accommodation. Additionally, the Department adopted rules outlining government entities’ obligations for digital accessibility under Title II. (Title II, like Title III, has accessibility obligations, but for public entities rather than private companies.) Under these, Title II entities must comply with the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines or WCAG. These are discussed in greater detail below.
Congress has not amended the ADA to reference the online environment specifically. This stands in opposition to the European approach, where the upcoming EU Accessibility Act applies specifically to the digital world. This includes more than just e-commerce platforms, but also devices (like e-readers) that provide access to content.
The ADA in an online environment
As those familiar with the EU Accessibility Act know, organisations have specific obligations when it comes to making digital products and services accessible. This is in contrast to an entity operating in the US, which must look to the case law when seeking to avoid exposure under the ADA or state laws like California’s Unruh Act. Or, to avoid potential allegations of engaging in unfair or deceptive trade practices, depending on the accessibility promises that might have been made on the company’s website.
What has emerged over the years under the case law is that the best way to avoid exposure is to ensure that the site conforms to WCAG standards. Indeed, most courts, in assessing a site’s accessibility, look to the site’s adherence with the then-current set of WCAG standards. What does this mean in practice?
Practical accessibility considerations
- Perceivable: in the US, to address WCAG, websites must be “perceivable” by those with disabilities. For those with visual impairments, this means having text alternatives for non-text content, for example, and making sure content is presented to users in ways they can perceive (by using things like braille or speech readers). It also includes having simple formats for presenting content and making it easier to see or hear content. This is similar to the EU Accessibility Act’s requirements to present information through multiple “sensory channels".
- Operable: the WCAG also has requirements around digital platforms’ “operability". This includes things like having all site functions available from a keyboard for those who cannot use a mouse. It also includes giving people time to read and pause content, and giving users ways to navigate through content (clear headers and labels, for example). The WCAG also prohibits content that might be known to cause physical reactions, like flashing content. These obligations are similar to the EU Accessibility Act’s requirements to make platforms compatible with assistive technologies.
- Understandable: under the WCAG, digital platforms should have understandable interfaces. This includes readable text, predictably operating pages, and ways to help users avoid mistakes. The WCAG also speaks to giving people ways to avoid errors through error messages or suggested corrections. Similarly, the EU Accessibility Act has obligations around understandability and providing clear labels and instructions.
- Robust: the last WCAG category is around making digital platforms “robust.” This includes making content compatible with both current and future assistive technologies. It also includes following standard programming languages and guidelines. For the EU, platforms need to be stable and compatible with assistive technologies.
Practically, for companies to accomplish and meet these requirements, there will need to be strong collaboration with the information technology teams that are standing up the digital platforms and operating them on an ongoing basis. There are many “accessibility checking” tools on the market, and the WC3 maintains a list of them on its website. Companies are cautioned, however, not to rely too heavily on accessibility widgets and instead, to focus on building their website out in an accessible way.
The way forward
While the US patchwork approach to website and digital accessibility may appear daunting at first, by following the WC3’s most recent WCAG standards, EU companies can create a workable strategy for accessibility in the US. And, those steps can help with not only the upcoming EU Accessibility Act obligations, but also to minimise potential exposure under US unfair and deceptive practice laws.
