Do Businesses Need to Make Their Web Sites Accessible to the Disabled?

Posted by Jeanine Gagliardi on Tue, 10/23/2012 - 04:00

Title III of the Americans with Disabilities Act (“ADA”) prohibits places of public accommodation from discriminating against individuals with disabilities. There are twelve categories of enterprises that qualify as places of public accommodation. They include places of entertainment, places of recreation, sale and rental establishments, and service establishments. Title III requires such places to comply with accessibility requirements and provide equal access to individuals with disabilities. One issue faced by businesses that operate only on the Internet is whether their web sites are "places of public accommodation". That is, must they be accessible to persons with disabilities?

In a June 2012 opinion, the United States District Court for the District of Massachusetts became the first court to hold that a web site-only business may be a place of public accommodation that is covered by the ADA. The plaintiffs, an individual and associations for the deaf and hearing impaired, sued Netflix. The plaintiffs claimed that Netflix’s failure to provide closed captioning for all of the content on its video streaming web site violates the ADA.

Netflix moved for judgment on the plaintiffs’ claim on grounds that a web site is not a place of public accommodation. The court rejected Netflix’s argument. Finding that Netflix’s video streaming site may fit within at least one of the categories identified in the ADA, the court held that it may be a place of public accommodation.

In reaching its conclusion, the court recognized two things. One, the purpose of the ADA is to make the same things available to individuals with disabilities that are available to other members of the general public. Two, limiting the scope of the ADA to physical structures, “in a society where business is increasingly conducted online,” would contravene this purpose.

In an opinion issued one month later, the United States District Court for the Northern District of California disagreed. This court, relying on prior decisions by California courts, held that places of public accommodation under the ADA are limited to physical structures.

These two cases illustrate the unsettled nature of the law concerning web sites and the ADA. Although the Department of Justice has been in the process of issuing regulations since 2008, the government has yet to issue any guidance to businesses. Online businesses should stay tuned for developments, as the developments may substantially affect their exposure to liability. In the meantime, entities that operate on the Internet should be wary of conducting business on web sites that are not accessible to individuals with disabilities.

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