The Next Frontier in ADA Litigation: Website and App Access for the Disabled

by Orrick, Herrington & Sutcliffe LLP
Contact

For the last several years, consumers have increasingly turned to online shopping as an alternative to traditional "brick and mortar" stores.  Some reports showed that "Cyber Monday" sales figures beat out those for "Black Friday" this year, and many retailers are doubling down on their eCommerce efforts in response.  What many retailers might not be aware of is the growing risk of litigation under the Americans with Disabilities Act (ADA) and derivative state laws arising from websites or mobile apps that allegedly discriminate against disabled individuals.

Although there has been more than a decade of litigation on this issue, basic questions have remained muddled, including whether Title III of the ADA (which requires access to places of public accommodations to disabled individuals) applies to websites.  Recent developments in case law, new proposed regulations by the Department of Justice (DOJ) slated for March 2015, and a noteworthy recent DOJ settlement with an online grocery service, all indicate that this will be an area to watch in 2015.

Title III and Private Employer Websites

Although there is no consensus among courts, some recent cases have held that Title III applies to websites, while several earlier cases held that it did not. 

Even courts that have held that a website is not a "public accommodation" under Title III have recognized that an exception exists where there is a "nexus" between the website and a physical place of public accommodation, such as a brick and mortar store.  For example, in National Federation of the Blind v. Target Corporation, the plaintiffs filed a class action lawsuit against Target, alleging that its website was inaccessible to blind individuals.[1]  Target argued that the website was not a place of public accommodation, and that plaintiffs had not alleged denial of access to the brick and mortar stores.  The court rejected this argument, noting that "it is clear that the purpose of the statute is broader than mere physical access—seeking to bar actions or omissions which impair a disabled person's 'full enjoyment' of services or goods of a covered accommodation."[2]  Target.com's retail offerings were held to have a sufficient nexus with its brick and mortar stores such that the plaintiff's claims survived a motion to dismiss.[3]  Until recently, courts have generally held that Title III does not apply to web-only services (such as Facebook or YouTube) because they do not have a nexus with any physical location.[4]  But in June 2012, the U.S. District Court for the District of Massachusetts held in National Ass'n of the Deaf v. Netflix, that Netflix's "Watch Instantly" website was a public accommodation subject to the ADA even though Netflix has no physical place of public accommodation.[5]  The court concluded that "[t]he ADA covers the services 'of' a public accommodation, not services 'at' or 'in' a public accommodation".[6]  The court found "Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations" and that the Netflix website may fit within at least one (if not more) of the categories listed in the ADA.[7]

In another case involving Netflix, in the U.S. District Court for the Northern District of California, Cullen v. Netflix, the court rejected the plaintiff's arguments, holding that it was bound by Ninth Circuit precedent requiring a nexus with an "an actual physical place" in order to trigger applicability of Title III.[8]  Additionally, a recent decision from the Central District of California indicates that, even where a defendant has physical locations, a "nexus" is not automatically created.  In Jancik v. Redbox Automated Retail, the court said that there was not a nexus between Redbox retail kiosks and the "Redbox Instant" website, holding that the "mere fact that the services are sold together does not mean that they are 'heavily integrated' or that one is a 'gateway' to the other."[9]

DOJ Set to Unveil Long-Awaited Regulations

Unlike Title II of the ADA, which applies to government entities, and provides detailed guidance as to what websites must do to comply with the ADA,[10] there are currently no such regulations under Title III.

To provide clarity in this area, the DOJ plans to issues new regulations applicable to websites of private companies in March 2015.  These regulations were originally planned to be released earlier—in fact, the DOJ has postponed the issuance of the regulations several times since July 26, 2010, when the DOJ issued its Advanced Notice of Proposed Rule Making (ANPRM).[11]  Although these delays have been met with frustration by some members of the plaintiffs' bar,[12] the DOJ, through its recent enforcement efforts, has made clear its intention to extend regulation of private websites.

The DOJ's ANPRM takes the position that many websites are places of public accommodation under Title III, and states that the proposed regulations are needed to ensure access to these websites by disabled persons by providing clear guidance as to what the ADA requires of websites.  From the abstract to the ANPRM:

Increasingly, private entities of all types are providing goods and services to the public through websites that operate as places of public accommodation under title III of the ADA. Many websites of public accommodations, however, render use by individuals with disabilities difficult or impossible due to barriers posed by websites designed without accessible features. […]

The ADA's promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today's technologically advanced society only if it is clear to businesses, educators, and other public accommodations, that their websites must be accessible. Consequently, the Department is proposing to amend its title III regulation to expressly address the obligations of public accommodations to make the websites they use to provide their goods and services to the public accessible to and usable by individuals with disabilities under the legal framework established by the ADA. The proposed regulation will propose the scope of the obligation to provide accessibility when persons with disabilities attempt to access websites of public accommodations, as well as propose the technical standards necessary to comply with the ADA.[13]

 The DOJ-Peapod.com Settlement

On November 17, 2014, the DOJ reached a settlement with Ahold U.S.A. Inc. and Peapod, LLC, the owner and operator of peapod.com, an online grocery retailer.[14]  This settlement shows that the DOJ is looking closely at the accessibility of websites and mobile apps and remains aggressive in its enforcement efforts.

Unlike past DOJ consent decrees, which involve websites and mobile apps that have a nexus to a physical place, the Peapod settlement agreement requires that a website and apps with arguably no nexus to a physical place be made accessible to the disabled.  The Peapod settlement foreshadows what the DOJ's upcoming regulations may require.  Three specific provisions of the settlement are particularly noteworthy:

  • First, the DOJ requires the companies to comply with WCAG 2.0 Level AA standards.[15]  There are three levels of conformance with WCAG guidelines:  A (lowest), AA, and AAA (highest).  This may signal that the DOJ views the AA guidelines as the appropriate regulatory standard.
  • Second, the settlement gives the companies until March 31, 2015, to make mobile applications accessible and until September 30, 2015 for the website.  It remains to be seen what will happen with DOJ enforcement and case law treatment of mobile apps (which are increasingly becoming the preferred method of accessing online content).  Notably, there is virtually no mention of smartphone apps and mobile devices in the proposed rulemaking.
  • Third, the settlement requires the companies to take certain steps to ensure that third-party content providers comply with the proposed accessibility standards—but it also excuses noncompliance if requiring a third-party to comply with the standards would create an "undue burden."

Other Accessibility Issues to Watch in 2015

In addition to website accessibility, businesses should be aware of other accessibility issues with newer technologies they adopt.  As one example, there was a wave of lawsuits earlier this year filed against various retailers – including Bath & Body Works, Build-A-Bear Workshop, Express, Office Depot, and American Eagle Outfitters—alleging that updated point of sale card-reading devices do not comply with the ADA.  Specifically, the lawsuits are based on the theory that the devices' flat touch screens force blind customers to reveal their PIN numbers to cashiers (as opposed to textured keys).  As new technologies continue to enter businesses and the workplace, companies should consider the implications of any new technology from an ADA compliance standpoint.

As we await more concrete guidance from the DOJ next March, all retailers should carefully evaluate their websites' compliance with the ADA.  And—if the DOJ's recent settlement is any indication of its future enforcement priorities and the potential scope of the forthcoming regulations— even online-only businesses should take a close look at website ADA compliance.

[1] 452 F.Supp.2d 946.
[2] Id. at 954, citing 42 U.S.C. § 12182(a).
[3] National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006).
[4] Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1113 (N.D. Cal. 2011) (granting Facebook's motion to dismiss Title III claim because Facebook "operates only in cyberspace" and does not have a nexus with a place of public accommodation); Ouellette v. Viacom, 2011 WL 1882780 (D. Mont. 2011), adopted by 2011 WL 1883190 (D. Mont. 2011) (allegations under the ADA "must establish a nexus between the use of the Web site and an actual, physical place" and the sites in question [including YouTube and MySpace] had no connection to a physical location).
[5] 869 F. Supp. 2d 196, 201 (D. Mass. 2012).
[6] Id.
[7] Id.
[8] Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012) (citing Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114, (9th Cir. 2000)).
[9] 2014 U.S. Dist. LEXIS 67223 (C.D. Cal. May 14, 2014) at *23.
[10] Section 508 of the Rehabilitation Act (29 U.S.C. 794d) provides detailed standards for public websites based on access guidelines developed by the Web Accessibility Initiative of the World Wide Web Consortium.  There is also an ADA checklist available to determine compliance with Title II: http://www.ada.gov/pcatoolkit/chap5chklist.htm.
[11] 75 FR 43460
[12] More Delay for DOJ Web Regs – Does it Matter? (June 2, 2014) (available at http://lflegal.com/2014/06/doj-delay/).
[13] The ANPRM and abstract are available here: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201404&RIN=1190-AA61.
[14] The settlement is available here: http://www.ada.gov/peapod_sa.htm.
[15] "WCAG" stands for Web Content Accessibility Guidelines, a widely-recognized set of web accessibility standards.

 

Written by:

Orrick, Herrington & Sutcliffe LLP
Contact
more
less

Orrick, Herrington & Sutcliffe LLP on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.