Even though the deadline for creating accessibility standards has been pushed back to 2018, private businesses are at risk now if they have not yet taken measures to ensure that their websites can be accessed by individuals with disabilities. In fact, just last month a blind man in California successfully argued that a Colorado-based luggage retailer failed to make its commercial website accessible to the visually impaired in violation of the Americans with Disabilities Act and a California disability law. In Davis v. BMI/BND Travelware, Case. No. CIV-DS-1504682, the court granted judgment to the plaintiff before trial, finding that he “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by Defendant because of his disability.”
Private plaintiffs generally have focused their efforts against retailers, and courts traditionally have required a connection between the website and a physical place. However, now courts are finding that even if a business operates only online, it is not immune from coverage under the ADA. In Nat’l Fed’n of the Blind v. Scribd, Inc., 97 F. Supp. 3d 565 (D. Vt. 2015), the court reasoned that the ADA applies to more than simply physical access to businesses and allowed the plaintiff’s case to go forward to attempt to establish violations of the ADA. Similarly, in Straw v. American Bar Association, No. 14 C 5194, 2015 WL 602836 (N.D. Ill. Feb. 11, 2015), the court noted briefly that the ABA’s lack of a physical site to sell its products did not automatically exclude it from being a “place of public accommodation” under the ADA, especially where it offered each of its services to the public through the internet.
Accessibility of websites affects employment practices as well, particularly as employers are switching to online employment applications. If an employer’s online application is inaccessible, the employer may face an ADA claim that its practices exclude individuals with disabilities from employment. The Department of Labor’s Office of Disability Employment Policy has created a free online tool called “Talent Works” that will provide assistance to employers to ensure that their online applications for employment are accessible for individuals with disabilities. In its March 2016 press release, the agency said, “Inaccessible technology prevents people with disabilities from applying and interviewing for jobs, and limits the talent pool for employers.” Employers are well advised to take action now to make their application process accessible to those with disabilities.
While many may be inclined to wait until the Department of Justice issues its “official” standards on accessibility in 2018, the recent uptick in litigation suggests that private businesses may wish to reconsider the wait-and-see approach. The reach of the ADA has been expanded beyond the four walls of a brick-and-mortar building and are now well into cyberspace.
