Website Accessibility: What to Know About the ADA’s New Guide

Emily Zhang

Associate Editor

Loyola University Chicago School of Law, J.D. 2024

In the recent years, there has been a significant increase in website accessibility lawsuits where plaintiffs claim that they cannot access websites because they are incompatible with assistive technology. Particularly, the number of Americans with Disabilities Act (ADA) Title III website accessibility lawsuits filed in federal courts in 2021 jumped 14% over 2020. This March, the U.S. Department of Justice published new guidance on website accessibility under ADA, however, businesses still struggle with understanding their compliance responsibilities.

It is undisputed that people with disabilities are denied equal access to information if web content is inaccessible. However, this does not necessarily mean that these types of websites are non-compliant with the ADA. The ADA, passed in 1990, prohibits discrimination against those with disabilities. The act covers all sectors including public and private spaces open to the public. In website accessibility lawsuits, plaintiffs will typically cite ADA Title III violations, claiming discrimination against people with disabilities by businesses open to the public (also referred to as “public accommodations” under the ADA). In general, private businesses with more than 15 employees are subject to the ADA, which includes the requirements of Title III.

The Department of Justice is making it a priority to ensure web accessibility via guidance which describes how state and local governments and businesses open to the public can ensure that their websites are compliant with the ADA.

Which businesses will be affected by the new prioritization?

Businesses that fall into the category of public accommodation are required to comply with Title III—this includes both physical and digital accommodations. Title III states, “…no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the good, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by a person who owns, leases (or lease to), or operates a place of public accommodation.” Because Title III has historically focused on the accessibility of physical premises, the most common website accessibility claims target applications or websites that have a “nexus” to a physical location. These are more likely to be considered places of public accommodation, as there is a sufficient connection between the goods and services of the physical space and website.

What is considered a public accommodation?

The Federal Courts of Appeals were split as to whether the term “public accommodation” refers only to a physical store or whether it can be applied to both websites and mobile applications. However, courts have begun to allow the term to be applied to both physical and virtual stores. Last year, the Eleventh Circuit vacated its prior decision in Gil v. Win-Dixie, an earlier ruling by the same court that held that websites were not places of public accommodation and declined to adopt the nexus standard. Courts within the First Circuit have found that stand-alone websites or applications could be potential places of public accommodation regardless of any connection to a physical location. A prime example of this would be subscription streaming services like Netflix or Hulu, which are both covered by the ADA. From litigation, we’ve learned that if your business has a physical location, the ADA will also apply to its website and mobile applications.

What if I’m unsure if my business is compliant?

Areas where these businesses have struggled to conform to ADA standards for their websites include inaccessible online forms, lack of text alternatives, and poor color contrast in text. A reasonable place to start is to engage a consultant and prioritize the accessibility of your legally significant pages (privacy, terms of use, purchase policy, return policy) and the pages that bring the most traffic (home pages, shopping cards, employment application pages).

State and local laws and regulations must be considered when you are making compliance decisions for your business. Despite the lack of clear standards in this area from the DOJ, it’s still important to note that because websites can be accessed from just about anywhere, your business can be subject to suit in any jurisdiction where its website is accessed. Nonetheless, it’s better to be safe than sorry. Now would be a good time to check your website for ADA compliance, as failure to comply with ADA website standards could open your business to lawsuits with damages to your brand reputation.