Colleges and Universities Targeted in Trending ADA Website Accessibility Litigation

Emanuel Delacruz, who is blind, is the plaintiff in a series of lawsuits recently filed in federal court against several New York colleges and universities, including Fordham University, Manhattan College, Hofstra University, Iona College, and Long Island University. The lawsuits allege that the higher education institutions' websites are inaccessible to Mr. Delacruz and therefore in violation of, among other laws, the Americans with Disabilities Act of 1990 ("ADA")

These lawsuits are part of a rapidly growing trend in the area of internet, technology and website accessibility litigation. The Wall Street Journal reported in 2014 that accessibility lawsuits had increased by 55% from the prior year. In 2015, the United States Department of Justice ("DOJ") received over 6,000 accessibility complaints, representing a 40% increase from the prior year. More recently, the New York Times reported that, since January 2015, at least 751 accessibility lawsuits have been filed. Specific to higher education institutions, the University of Minnesota appears to be tracking not only accessibility lawsuits, but also government investigations into website and technological accessibility, listing over 35 colleges and universities that have been accused of non-compliance with the federal and/or state disability laws.

Title II of the ADA prohibits disability discrimination in all services, programs and activities provided by state and local governments (including publicly-funded universities, community colleges, and vocational schools). Title III of the ADA, which applies to private colleges and universities, provides that "[n]o individual shall be discriminated against 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." And Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act") provides that no disabled person shall, on the basis of his or her disability, "be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance."

Because the ADA was passed in 1990 and the Rehabilitation Act was passed in 1973, there is no reference within either statute to the internet or websites. The DOJ has taken the position that the ADA applies to the Internet and web-based goods and service providers; the DOJ, however, has delayed promulgating regulations that would codify its position, and it appears unlikely to happen any time soon, particularly after the Trump Administration's DOJ placed web regulations on its list of "inactive" agenda items this past July. In the absence of clarity from the federal government, the resolution of this issue has generally been left to the courts, resulting in varying judicial interpretations and conflicting decisions.

Federal courts have specifically been divided over whether a website should be considered "a place of public accommodation" within the meaning of Title III of the ADA. Some courts have found that websites are "places of public accommodation" for purposes of the ADA, see, e.g., Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co. and Am. Fed'n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999); Carparts Dist. Ctr., Inc. v. Automotive Wholesaler's Ass'n of New England, 37 F.3d 12 (1st Cir. 1994), while other courts have rejected such an expansive reading of the statute, instead holding that places of public accommodation must be limited physical commercial entities. See, e.g., Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1319-21 (S.D. Fla. 2002); Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995); Ford v. Schering Plough Corp., 145 F.3d 601 (3d Cir. 1998). The Ninth Circuit Court of Appeals has taken a hybrid approach, finding that to be considered a place of public accommodation, there must be "some connection between the good or service complained of and an actual physical place." Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Cullen v. Netflix, Inc., 600 Fed. Appx. 508 (9th Cir. 2015). In one of the more well-known cases challenging the accessibility of websites, National Federation of the Blind v. Target Corp., the district court denied a motion to dismiss a claim alleging that the inaccessibility of the website impeded the full enjoyment of goods and services found in Target stores. 452 F. Supp. 2d 946 (N.D. Cal. 2006). The district court noted that because Target's website and physical stores appeared to be heavily integrated, the scope of the coverage of the website under Title III of the ADA could be quite broad.

One example of what appears to be the recent trend of courts liberally interpreting the ADA's "place of public accommodation" requirement can be found in National Federation of the Blind v. Scribd, Inc., 97 F. Supp. 3d 565, 576 (D. Vt. Mar. 19, 2015). The National Federation of the Blind (the "Federation") brought suit against Scribd"”a digital library that operates reading subscription services on its websites and apps for mobile phones"”alleging that Scribd's content violated Title III of the ADA because it used an exclusively visual interface and lacked any non-visual means of operation. Id. at 567. Scribd moved to dismiss the Federation's complaint, contending that it had not alleged facts demonstrating that Scribd "owns, leases, or operates a place of public accommodation" since its services are provided exclusively online. Id. The court disagreed with Scribd and denied its motion to dismiss. In doing so, the court dismissed Scribd's argument that "since all of the examples listed in [the statute] are physical places, Title III of the ADA only applies to discrimination occurring at a physical place. . . ." Id. at 569. The court stated that "[r]equiring a physical structure or some connection to a physical threshold would result in arbitrary treatment. For example, it would make little sense if a customer who bought insurance from someone selling policies door to door was not covered but someone buying the same policy in the parent company's office was covered." Id. Next, the court looked to the statute's legislative history to conclude that its drafters did not intend for it to apply only in the physical realm, noting the purpose of the law"”i.e., "to end widespread discrimination" and to implement a program to address the "compelling need for a clear and comprehensive national mandate to eliminate discrimination against disabled individuals. . . ." Id. at 573 (internal quotations omitted). Furthermore, the court noted, the Committee Report explicitly stated that "the types of accommodations and services provided to individuals with disabilities "¦. should keep pace with the rapidly changing technology of the times." Id. at 574 (citing H.R. Rep. 101-485(II), at 108).

More recently, on June 12, 2017, a federal judge out of the Southern District of Florida entered a first-of-its-kind verdict, finding that grocer Winn-Dixie violated Title III of the ADA by having a website that could not be used by the visually impaired plaintiff to download coupons, order prescriptions, or find store locations. Gil v. Winn-Dixie Stores, Inc., 2017 U.S. Dist. LEXIS 90204 (S.D. Fla. June 13, 2017). Three days later, on June 15, 2017, a federal judge out of the Central District of California found that Hobby Lobby failed to provide disabled individuals with full and equal enjoyment of goods and services offered by its physical stores by not maintaining a fully accessible website. Gorecki v. Hobby Lobby Stores, Inc., 2017 U.S. Dist. LEXIS 109123 (C.D. Cal. June 15, 2017). Notably, however, the decision in Gorecki is in stark contrast to a recent decision reached by a federal judge in the same United States District Court. See Robles v. Domino's Pizza LLC, 2017 U.S. Dist. LEXIS 53133 (C.D. Cal. March 20, 2017) (holding that requiring Domino's Pizza to provide an accessible website in the absence of a clear regulation would violate the company's constitutional right to due process). Thus, while the trend appears to be shifting to a more liberal interpretation of the "place of public accommodation" requirement under Title III of the ADA, the law in this area remains far from settled.

The absence of clear direction from the DOJ or the courts leaves all businesses, including colleges and universities, in a difficult position. In an abundance of caution, entities that design or operate websites (and mobile applications) should guard against potential liability by taking steps to ensure that the websites (and mobile applications) are accessible to individuals with disabilities and otherwise ADA compliant. Such steps could include conforming all web content and services with the Web Content Accessibility Guidelines, available here, at least until the DOJ promulgates regulations governing website accessibility. That said, making these types of changes to an existing website or designing a new website can be both a time-consuming and expensive undertaking, and ultimately may not be required if the courts or DOJ adopt a different website accessibility standard.