By McKenzie Schnell

Accessibility, the design of products, services, and environments for people with disabilities, is increasingly seen and enforced as a civil right. In fact, the number of civil lawsuits brought against companies that do not have accessible websites increased more than sevenfold between 2015 and 2017. While most lawsuits have been filed  against businesses with a physical storefront and an internet presence (e.g., the Winn Dixie lawsuit currently on appeal in Florida), App Association members should be keenly aware of how to abide and uphold the Americans with Disabilities Act (ADA). The reach of the ADA is broad, and rulings from recent court decisions apply the ADA to online platforms, regardless of whether it is an extension of a physical storefront or a digitally-based app.

Title III of the Americans with Disabilities Act states:

“[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 public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”[1]

The ambiguity of this provision has raised the question of whether a business that offers goods and services solely through a digital platform is a place of public accommodation that must be accessible to disabled users. Historically, the majority of circuit courts that have ruled on this issue have interpreted “a place of public accommodation” as one with a “nexus” to a physical location.[2] The primary evidence used to support this argument is found in 42 U.S. Code § 1218(7), which provides a list of public accommodations, all of which reference physical places.

However, recent federal court rulings in the Eleventh and Seventh Circuits have advanced a broader interpretation of public accommodations to reflect the realities of our ever-expanding digital world. For example, in 2017 the Eastern District of New York Court used a Second Circuit decision, which found the ADA’s Title III reaches beyond physical location to include products sold from that location. This ruling arrived at the conclusions that: (1) websites are subject to ADA, regardless of whether the goods and services are offered only on online locations, and (2) courts do not need U.S. federal agency regulations to decide whether a website violates the ADA.

With federal circuits yet to rule on this issue, the decisions from district courts will be highly influential and may indicate a new trend of ADA enforcement against digital-only businesses, including countless App Association members.

We, and our members, are committed to providing an accessible experience for all tech users, and we encourage the mindset of accessibility by design, in which accessibility features are incorporated from the start of the design process. Not only does dedication to accessibility increase the number of consumers who may use, enjoy, and benefit from an app or product, but it’s the right thing to do. And with new decisions to be issued in the federal courts, incorporation of accessibility features will help companies avoid legal woes down the road. We encourage each of our members to proactively apply Website Content Accessibility Guidelines (WCAG) 2.0 Level A and AA standards in product design to avoid potential liability in ADA compliance.

As an association, we continue looking for new ways to advance disability access in technology. We are proud to serve on the Disability Advisory Committee, the Federal Communications Commission’s official advisory committee responsible for addressing disability access to tech, and we coordinate with key policymakers to advance accessibility solutions. In March, we will lead a panel at SXSW to discuss recent technological innovations in accessibility and the benefits brought to the disabled community. And we continue to seek and value our members’ expertise to ensure that legal, regulatory, and tech solutions allow for innovation while upholding the principles of accessibility.

We urge our members to reach out with any questions or perspectives on the new ADA-related legal developments, or disability access issues generally.

If you will attend the 2018 SXSW conference, join us and our member Betsy Furler for an engaging conversation on innovations in accessibility. Learn more here.

 

[1] 42 USC 12182(a)

[2] 3, 6, 9, 11 contra 1, 7