When people think of the Americans with Disabilities Act (ADA), they typically picture wheelchair ramps, bathroom handrails, and other solutions for making brick and mortar locations more accessible. These days, businesses have to think about their websites, too. As an increasing number of consumers do their shopping online, courts, governmental agencies, and (of course) the plaintiffs’ bar have all argued that the ADA should apply to virtual storefronts with the same force as the physical store down the street.
Title III of the ADA says that “[n]o individual shall be discriminated against on the basis of disability… by any person who owns, leases (or leases to) or operates a place of public accommodation.” Those last words are key. What’s a “place of public accommodation”? Does that include websites associated with brick and mortar businesses? What about businesses that are only online?
Some courts, like federal courts in the District of Vermont and the District of Massachusetts, have said a website doesn’t need a connection to a physical location for the ADA to apply. Others, most notably the Ninth Circuit, have come to the opposite conclusion.
Unfortunately for marketing researchers, case law concerning the ADA’s applicability to websites is a mess, and the Department of Justice, the agency in charge of ADA regulations, isn’t expected to give any guidance until 2018, despite earlier promises to do so by 2014. This lack of clarity has been exploited by the plaintiffs’ bar.
In addition to questions about the ADA’s applicability, there are questions about what it requires in an online context. Under the ADA, discrimination includes denying disabled people the chance to participate in programs or services, as well as providing the disabled with separate but unequal goods and services. To prevent discrimination, the ADA requires business to make “reasonable modifications” to ensure disabled people are accommodated.
What are “reasonable accommodations” on a website? It’s not clear: the terms of settlements, including how targeted agree to change their websites, are often confidential. Some settlements have referenced the the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to make a website more accessible. The WCAG 2.0 may be a starting place for discussions.
In the most notable ADA website case so far, the National Federation for the Blind (NFB) brought a class action against Target, alleging blind customers could not access the retailer’s website to purchase products, redeem gift cards, find Target stores or perform other functions available to sighted customers. After a federal judge denied Target’s motion to dismiss, Target settled the case, agreeing to pay $6,000,000 to class members.
In short, it’s not clear that the ADA would apply to marketing research sites, but it’s not totally clear that it wouldn’t either. Think, for example, about online panelists that are part of an online panel, accessed through a website. Is the panel company obligated to provide reasonable accommodations to make the website ADA compliant? As this uncertainty is likely to continue, marketing researchers should consult with qualified legal counsel about the potential applicability of the ADA to their websites, and consult with technology experts about whether modifications can be made at low cost.
This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with your attorney on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.
NewsGovernment AffairsStuart Pardau