The Bottom Line
- When faced with an ADA website accessibility claim, there are defenses that can be raised, either with the court or as part of settlement negotiations.
- For website operators that operate stand-alone websites without a physical store presence, more courts are finding that the ADA does not apply to such stand-alone websites.
- In defending against ADA website claims, companies should seek the advice of their legal counsel to arrive at an appropriate response.
Lawsuits targeting websites and their operators asserting claims under the Americans with Disabilities Act (ADA) and similar state laws continue to be on the rise. The typical allegation in these cases is that the operator’s website is not sufficiently accessible to blind or visually impaired persons. As we discussed in a previous alert, while many of these cases result in swift settlements, website operators do have viable defenses against such claims. A recent federal court decision reinforces that these defenses can be effective either in court or in settlement negotiations.
The ADA’s Applicability to Websites
Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” In deciding if the ADA applies to websites, courts have focused on the critical language of “any place of public accommodation.” Courts are divided on whether and to what extent a website counts as a place of “public accommodation,” such that it is covered by the ADA.
Although there are no official rules or statutes governing whether a website is ADA compliant, courts regularly apply the standard set forth in the Web Content Accessibility Guidelines (WCAG). The WCAG measures three levels of compliance, including A (minimal compliance), AA (acceptable compliance) and AAA (optimal compliance).
Website Operators’ Potential Defenses to ADA Website Claims
Companies faced with ADA website claims often pursue a settlement — which is likely the most prudent course of action, because these cases can typically be resolved for less than a company would spend on legal fees to defend the case. However, a company faced with an ADA website claim may have several potential defenses.
For example, and as discussed in our prior alert, an ADA website claim is subject to dismissal if the plaintiff fails to adequately allege “standing.” Standing is a constitutional requirement — if a plaintiff does not have standing, the plaintiff cannot bring a claim. To demonstrate standing in an ADA website case, a plaintiff must sufficiently allege an “injury in fact.” That is, a plaintiff must prove they visited the relevant website intending to make a purchase — it is not enough that the plaintiff merely browsed the website and found it inaccessible. In addition, a plaintiff must plausibly show a “real and immediate threat of future injury,” meaning that the plaintiff must allege that they intend to return to the subject website.
Another potential defense relates to whether a website is a “place of public accommodation” at all. Some courts hold that the ADA generally applies to all websites (including the First and Seventh Circuits). Other courts hold that the ADA only applies to websites that have a “nexus” to an ADA-covered physical facility, often referred to as a “brick and mortar” nexus (including the Third, Sixth, Seventh, Ninth, and Eleventh Circuits).
Although the Second Circuit, which covers the federal courts in New York, has not yet squarely addressed this issue, a recent U.S. District Court for the Southern District of New York decision, Jose Mejia v. High Brew Coffee, Inc., provides another arrow in the quiver for Defendants who sell products exclusively online. In High Brew Coffee, which involved a company that sold coffee exclusively through its website, the District Court considered whether a website could be a place of public accommodation “absent a connection to a physical location.” After analyzing the relevant statutory text and structure, the district court held that a “stand-alone website is not a place of public accommodation” under the ADA, and dismissed the Plaintiff’s ADA claim on that basis.
High Brew Coffee demonstrates that defendants in ADA website cases pending in the Southern District of New York who operate stand-alone websites can now attack an ADA website accessibility claim by arguing that their website does not fall within the scope of the ADA. Note that plaintiffs may attempt to avoid this issue by filing their lawsuits in state court, using that state’s ADA analog statute, or by asserting only state-based claims as opposed to ADA-based claims.