The ADA and Web Accessibility
Chicago Bar Association Legal Aid Committee
January 10, 2008
Barry C. Taylor, Equip for Equality and the Illinois ADA Project1
I. Overview of the ADA’s Purposes
When Congress enacted the Americans with Disabilities Act in 1990, it found that
“society has tended to isolate and segregate individual with disabilities and…such forms
of discrimination against individuals with disabilities continue to be a serious and
pervasive social problem.” 42 U.S.C. 12101(a)(2) Congress also sought to “assure
equality of opportunity, full participation, independent living, and economic self
sufficiency” for individuals with disabilities. 42 U.S.C. 12101(a)(8)
II. Application of Websites under Different Titles of the ADA
Many people with disabilities are unable to access information on websites because of a
variety of barriers that exist. However, the ADA does not specifically reference websites
because it was passed in 1990 before the Internet became such an integral element of our
society. There are three different contexts in which an ADA claim could arise when a
website is inaccessible:
A.
Title I - Employment
Title I of the ADA provides that an employer shall not discriminate against a qualified
individual with a disability with regard to “job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions and privileges of employment.” 42 U.S.C. 12112(a)
Currently, there are no reported Title I cases involving website accessibility. A Title I
claim could arise when an employer requires that all job applicants apply via an
application on its inaccessible website. Such a requirement would result in the unequal
access to the job application process for applicants with disabilities who are unable to
navigate the website independently.
B.
Title II – Public Services
Title II of the ADA covers public services – Subtitle A covers services by state and local
governments and Subtitle B covers public transportation. The ADA states that no
qualified individual with a disability shall “be excluded from participation in or be denied
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. 12132
1
The Illinois ADA Project is funded by DBTAC-Great Lakes ADA Center, University of Illinois at
Chicago. US Department of Education, National Institute on Disability Rehabilitation and Research Award
#H133A060097.
1
In Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362 (N.D.
Ga. 2002), a group of people with disabilities brought suit under Title II of the ADA
against the Atlanta public transportation system. The suit cited numerous ADA
violations, including MARTA’s inaccessible website. The court found that the failure of
MARTA to provide the blind community with equal access to its website violated Title II
of the ADA. The court held that until MARTA made its website accessible, it was
violating the ADA’s mandate of “making adequate communications capacity available,
through accessible formats and technology, to enable users to obtain information and
schedule service.”
C.
Title III – Public Accommodations and Services Operated by
Private Entities
Title III of the ADA covers public accommodations (i.e. private businesses open to the
public). Under Title III, people with disabilities may not be discriminated in the “full and
equal enjoyment of the goods, services, facilities, privileges, advantages or
accommodations of any place of public accommodation.” 42 U.S.C. 12182(a)
1. Place of Public Accommodation
A major issue in Title III litigation is whether the defendant is actually a “place” of public
accommodation. The Circuits are split as to whether there has to be a physical space in
order to be covered by Title III. In a case involving insurance discrimination, the
Seventh Circuit Court of Appeals held that Title III did not require a physical space for
liability. See Doe v. Mutual of Omaha, 179 F.3d 557 (7th Cir. 1999) Interestingly,
although Doe did not involve website accessibility, the Seventh Circuit explicitly listed
websites among the entities that are covered by Title III. Id. at 559
2. Web Accessibility Cases
In Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), a
disability advocacy organization and a blind individual sued Southwest Airlines because
its website was inaccessible. The court dismissed the claim that an airline’s website
violated Title III of the ADA. Specifically, the court found that because the website does
not exist in any particular geographical location, it was not a place of public
accommodation. The case was appealed to the Eleventh Circuit Court of Appeals.
However, on appeal, the plaintiffs changed their argument claiming that the website was
part of a “travel service” and therefore, covered by Title III of the ADA. The 11th Circuit
dismissed the case because this argument had not been made before the trial court and
was inappropriately first raised on appeal. Access Now v. Southwest Airlines, 385 F.3d
1324 (11th Cir. 2004)
In National Federation of the Blind v. Target Corporation, an advocacy group for blind
people claimed Target violated Title III of the ADA and California state laws because its
website was inaccessible. In denying Target’s Motion to Dismiss, the judge concluded
that to the extent that plaintiffs alleged that the inaccessibility of www.target.com
impeded the full and equal enjoyment of goods and services offered in Target stores, the
plaintiffs stated an ADA claim. In other words, the court found the plaintiffs’ ADA
claim viable because Target’s website had a “nexus” to Target stores, which are places of
2
public accommodation. The court also found that Target treats its website as an
extension of its stores and as part of Target’s overall integrated merchandising efforts.
[2006 WL 2578282 (N.D. Cal. Sept. 6, 2006)]
More recently, the court issued another order certifying the case as a class action. The
class is defined as “all legally blind individuals in the United States who have attempted
to access www.target.com and as a result have been denied access to the enjoyment of
goods and services offered in Target stores.” (There is also a “subclass” for California
residents for claims arising under California law.) The court granted Target’s motion for
summary judgment with respect to an individually named plaintiff, but allowed for the
substitution of other named plaintiffs who can establish that their difficulties with
Target’s website have impeded access to the goods and services available in the store.
The court held that the named plaintiff’s state law claims survived Target’s motion for
summary judgment. [2007 WL 2846462 (N.D. Cal. Oct. 2, 2007)]
In May 2005, LaSalle Bank worked with Equip for Equality and others to update its
websites to make them more accessible. For a copy of the agreement, go to:
http://equipforequality.org/programs/assistivetechnology/lasallebank_settlement.doc
In June 2007, Radio Shack agreed to change its website to make it accessible to people
who are blind and visually impaired. For information on the agreement, go to:
http://www.radioshackcorporation.com/ir/release_details_main.php?id=918
III. ABA Resolution on Accessibility of Websites
In August 2007, the American Bar Association passed a Resolution urging that websites
operated by individuals and organizations associated with the legal profession be “created
and maintained in an accessible manner which is compatible with reasonable
technologies (known as assistive technology) that permit individuals with visual, hearing,
manual, and other disabilities to gain meaningful access to these websites.”
The ABA affirmed the importance of making legal information and services accessible to
people with disabilities. The ABA found that there is “a direct link between the
accessibility of legal websites and the ability of people with disabilities to find
employment with legal employers, work as lawyers and paralegals, access legal
information and services, and obtain competent legal representation.”
The ABA’s Resolution also includes practical advice on making websites accessible.
IV. Conclusion
The case law is still developing as to whether there is a cause of action under the ADA
for inaccessible websites. However, employers, public entities and private businesses
should make their websites accessible to achieve the underlying purpose of the ADA to
promote the full participation of people with disabilities in our society.
3