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Monday, November 26, 2012

Got (website) ADA? Commercial Websites and the Accessibility Requirements of the Americans with Disabilities Act.

By Dino Tsibouris and Ken Sperl

Section 508 of the amended Workforce Rehabilitation Act requires federal agencies to make their websites accessible to disabled persons.  In 2008, the Justice Department was given the power to create rules for entities subject to the Americans with Disabilities Act (“ADA”).  One of the goals of the Justice Department under its rulemaking power was to require commercial entities to abide by the same rules as federal agencies regarding Section 508.

Before the Justice Department was given the rulemaking powers regarding the ADA, in 2006 in the Northern District of California, the case of the National Federation of the Blind, et al. v. Target Corporation, came before the court and the judge only allowed those portions of the plaintiff’s claims to continue in which the website supplemented the physical stores of Target and dismissed those claims that related to information and services unconnected to Target stores (National Federation of the Blind, et al. v Target Corporation No. C 06-01802 MHP [N.D. CA., Sept. 5, 2006]).  The judge required a “nexus” between the website and the physical location.

On June 19, 2012 in Massachusetts, in the case of National Association of the Deaf v. Netflix, Inc., Netflix argued that the ADA applies only to physical places and therefore could not apply to website-only businesses like Netflix’s “Watch Instantly” streaming service.  In denying Netflix’s motion to dismiss the judge ruled that it would be “irrational to conclude” that: “places of public accommodation are limited to actual physical structures…In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.” Moreover, the judge stated that the fact that the ADA “does not include web-based services as a specific example of a public accommodation is irrelevant” since such web-based services did not exist when the ADA was passed in 1990 and because “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.” (National Association of the Deaf v. Netflix, Inc., 3:11-cv-30168-MAP [D. Mass. June 19, 2012])  However, in a similar case in California, the judge dismissed such claims against Netflix, holding that Internet movies viewed online are not within the ADA’s definition of a “public accommodation.”

Commercial businesses using a website to enable customers to purchase their goods and services are being placed in a difficult position.  Currently, there are no regulations in place that obligate a business to make its website accessible to the disabled.  But, as evidenced by the Netflix lawsuit, courts are willing to treat the situation as though the obligation is in place.  Does a business step up, spend the money and make its website accessible before it is obligated to do so?  Making the changes could be expensive and the standards may change by the time legislation is passed that specifically obligates commercial businesses.  Or, does the business stay as it is and accept the potential risk of class action lawsuits?

Unfortunately we may not have a definitive ruling on the issues of "public accommodation" status with respect to websites in the immediate term.  Netflix settled the case in Massachusetts in early October and agreed to include closed captioning for all streamed movies by 2014 and paying $755,000 in fees to the plaintiff lawyers.  If anything, businesses should at least factor accessibility into their development efforts because this may serve as an incentive for plaintiffs lawyers in the near term.

Story at http://abclocal.go.com/kgo/story?section=news/business&id=8842650

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