Navigating the ADA in the Digital World

For 25 years, Title III of the Americans with Disabilities Act (ADA) has protected individuals with disabilities from discrimination when it comes to experiencing or enjoying goods and services offered to the public by “places of public accommodation.” Traditionally the term “places of public accommodation” has encompassed certain privately-owned brick-and-mortar locations, including lodging, recreation, transportation, education, dining, retail stores, and visiting care providers. Yet, as the internet continues to become ever more ubiquitous in our daily lives, new questions arise as to how Title III applies to e-commerce sites or other digital experiences that are analogous to these conventionally covered locations. In July 2010, the U.S. Department of Justice (DOJ), which enforces Title III and can issue regulations that interpret the non-employment provisions of the ADA, released an advance notice of proposed rulemaking promising forthcoming regulations explaining how Title III of the ADA applies to certain websites. In the six years since, however, the DOJ has continually pushed back the date of these promised regulations, thus delaying clear and definite guidance to businesses and website owners who might be affected. And although several lawsuits have been litigated against companies (including Netflix, Amazon, and H&R Block) alleging discrimination for not making their websites more accessible to persons with disabilities, the outcomes of these cases have gone varying directions, leaving the legal questions unsettled. According to Matthias Niska, a labor and employment attorney for Nilan Johnson Lewis who specializes in disability-related matters, the issues involved are tricky and require businesses to look at the digital experiences they offer with a new lens. “We’re talking about the virtual equivalent of a wheel-chair ramp,” he says. “Companies need to consider whether their sites are coded to allow screen text to be translated into synthesized speech in accordance with widely-accepted guidelines, and whether the sites are designed to be as user-friendly and navigable for persons with disabilities as they are for everyone else.”

Given that the courts have ruled inconsistently on these issues, Niska recommends businesses that offer goods and services to the public through their websites proactively address the issue by making updates to their websites on their own timeline rather than one ordered by a court. “Eventually, applying accessibility standards to these online public accommodations will become as routine for website designers as it is for contractors when they develop physical locations,” he predicts, “but we have a long way to go.” To speak with Matthias Niska about this issue, or any other issue relating to the Americans with Disabilities Act, contact him at 612.305.7727 or mniska@nilanjohnson.com. For media inquiries, contact Aaron Berstler at 651.789.1264 or aaron@kohnstamm.com.

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