by Joseph A. Merlino
In 1990 Congress passed Title III of the Americans with Disabilities Act, which states in relevant part that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Since then, significant progress has been made to provide individuals with disabilities the same access to goods and services in commercial settings. For instance, many stores are now specifically designed to ensure that individuals who rely upon wheelchairs or other walking aids can have the same access to goods and services as individuals who are not impaired.
When Title III passed in 1990, the term, “E-Commerce” had not yet been coined or possibly even contemplated. Today, people purchase more products online than ever before. Long gone are the days of renting movies from Blockbuster or purchasing CDs at a store. Instead, anyone can download, stream or rent the products right from their living room.
Some business owners who conduct business online may think Title III does not apply to the public’s use of their website because it is not a “place of public accommodation.” However, they may be wrong.
In National Association of the Deaf v. Netflix, Inc., the U.S. District Court for the District of Massachusetts adopted a broad application to Title III, holding that Netflix had to provide closed captioning for customers who purchased the “Watch Instantly” product online. The court reasoned that Title III was meant to evolve and that entities that provide goods or services in the home may qualify as a place of accommodation, even if Netflix did not conduct business from any commercial space.
Additionally, the Department of Justice (DOJ) has intervened in Title III disputes and imposed heavy fines upon businesses that fail to provide accommodations to disabled persons on their websites. For instance, when customers of H&R Block alleged that they could not access the tax preparer’s services on its website due to their disabilities, the DOJ intervened and ordered H&R Block to update its website and to follow the Web Content Accessibility Guidelines 2.0 (WCAG). WCAG was developed by a consortium of individuals and organizations to create a shared standard for web content accessibility.
In order to avoid costly litigation and fines, business owners should seriously consider updating their websites to accommodate individuals with disabilities. Some recommendations from WCAG include the following: 1) provide captions and other alternatives for multimedia content; 2) make all functionality available from a keyboard; 3) make text readable and understandable; 4) provide users sufficient time to enter information; and 5) make it easier to see and hear content.
Although the law is still developing in this area, businesses of all sizes should review their websites and ask, “If a person who is disabled visits our website, can he or she have an online experience close to a person who is not disabled?” If the answer is no, then the business may be forced to expend valuable resources defending against claims brought under Title III.