Look Out: Website Accessibility Lawsuits Persist Unabated

Victor Andrews, who is legally blind, is the lead plaintiff in a series of putative class action lawsuits recently filed in federal court against nearly a dozen businesses in the retail and hospitality industries. The lawsuits allege that the businesses' websites are inaccessible to Mr. Andrews and therefore in violation of Title III of the Americans with Disabilities Act of 1990 ("ADA"), the New York State Human Rights Law ("NYSHRL"), the New York State Civil Rights Law, and the New York City Human Rights Law ("NYCHRL").

These lawsuits are part of a rapidly growing trend in the area of internet, technology and website accessibility litigation. In fact, 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, over 750 accessibility lawsuits have been filed in federal court.

By way of background, Title III of the ADA 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." Similarly, the NYSHRL and NYCHRL generally make it unlawful for the owner, manager, agent or employee of any place of public accommodation to deny a person, because of disability, the accommodations, advantages, facilities or privileges of the place of public accommodation.

At issue in most of these website accessibility lawsuits is whether the website is a "place of public accommodation" within the meaning of federal, state, and local disability laws. Because the ADA was passed in 1990, there is no reference within the 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; however, the DOJ 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.

Indeed, federal courts are divided over whether a website should be considered "a place of public accommodation" within the meaning of Title III of the ADA. The United States District Court for the Eastern District of New York, in Andrews v. Blick Art Materials, LLC, recently summarized the split among courts as follows:

The Courts of Appeals for the Third, Sixth, Ninth, and Eleventh Circuits hold that the statute is unambiguous: "places of public accommodation" are physical structures, and the only goods and services that a disabled person has a "full and equal" right to enjoy are those offered at a physical location. Discrimination only exists if the discriminatory conduct has a "nexus" to the goods and services of a physical location. . . . By contrast, the Courts of Appeals for the First and Seventh Circuits, while also holding that the ADA is unambiguous, reach the conclusion that "places of public accommodation" need not be physical structures, and discrimination may occur when the goods or services of a "place of public accommodation" are enjoyed by customers who never visit a physical location.

No. 17-CV-767, 2017 U.S. Dist. LEXIS 121007, at *11-18 (E.D.N.Y. July 31, 2017). Notably, the Second Circuit Court of Appeals, which has appellate jurisdiction over the federal district courts in New York, has not addressed the precise issue of whether a website should be considered "a place of public accommodation," but it has indicated, in the context of whether the ADA "regulates insurance underwriting practices," that it may share the view of the First and Seventh Circuits. See Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999).

That said, 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).

Although the trend appears to be shifting toward a more liberal interpretation of the phrase "place of public accommodation," the absence of clear direction from the DOJ or the courts leaves businesses in a difficult position. Modifying an existing website or designing a new website to accommodate individuals with disabilities 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. That said, conservative businesses that design or operate websites (and mobile applications) are taking steps to ensure that the technology is accessible to individuals with disabilities and otherwise compliant with federal, state, and local disability laws. Such steps 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.