By now, most are well aware that federal anti-discrimination law includes the Americans with Disabilities Act (ADA),1 as well as the Americans with Disabilities Act Amendments Act of 2008 (ADAAA),2 which offer substantial protections for those with qualifying disabilities in areas including public accommodation, commercial facilities, telecommunications, and employment.3 "As a result of . . . bipartisan efforts, on July 26, 1990, President George H.W. Bush signed the [ADA] into law. Upon doing so, [he] remarked that the [ADA] 'represents the full flowering of our democratic principles' and 'promises to open up all aspects of American life to individuals with disabilities.'"4 The ADA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), although the Department of Justice and the U.S. Attorney General are responsible for creating and publishing rules and regulations concerning Title II (State and Local Governments) and Title III (Public Accommodations and Commercial Facilities).5 Some states, such as New York, have similar protections for those with qualifying disabilities.6 In New York, the Division of Human Rights has responsibilities very similar to the EEOC.7
The topic of numerous articles and cases in recent years has been the expansion of protections to include the accessibility of web pages and internet resources when it comes to those with qualifying disabilities under the ADA or relevant state laws8 - an area complicated by the fact that there is currently no uniform guidance, and no specific rules for websites promulgated by the Department of Justice.9 This article collects cases and commentaries, with a particular eye toward informing attorneys, managing partners and law firm administrators/marketing directors. The question explored: If your law firm utilizes a website, but that website is not accessible to those with a certain disability - for instance, it is not enhanced and accessible to the hearing impaired (if there is an audio component) or the visually impaired (lacking a screen-reader function) - is the firm, through its website, in violation of the ADA or New York State law, and potentially subject to litigation and liability10 Title III of the ADA applies to commercial and private websites, particularly if they affect interstate commerce.11
The Relevant Guidance -a Divide in Need of a Bridge
According to A Guide to Disability Rights Laws, published by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, in July 2009:
To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.
Title III covers businesses and nonprofit service providers that are public accommodations, privately operated entities offering certain types of courses and examinations, privately operated transportation, and commercial facilities. Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, . . . [professional] offices, . . . and recreation facilities including sports stadiums and fitness clubs. Transportation services provided by private entities are also covered by title III.
Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements.12
Given recent caselaw, it appears that two general categories may be carved out at the beginning of the analysis: (a) one having a business/service that is operated solely online via website/internet, or (b) a website business/service that has some "nexus" to a brick-and-mortar location. This distinction exists because of a very real, and troublesome, Circuit split.13 In Haynes v. Hooters of Am., LLC, the plaintiff, a blind business patron, attempted to utilize the website of the restaurant operator utilizing screen reader software. However, the website was not compatible with the software plaintiff used. Plaintiff thereafter brought suit, alleging violations of Title III of the ADA14.Defendant argued that another lawsuit had already been filed against it on nearly identical grounds, and that it was already updating its website to bring it into legal compliance. Because of that, the U.S. district court dismissed plaintiff Haynes' suit. On appeal, the 11th Circuit vacated and remanded. Not only did the court hold that Haynes was not a party to the prior suit, and therefore could not monitor or enforce the agreement for updating of the website, there was nothing in the record showing that Hooters had updated its website. Therefore, the issues were still "live."15 Furthermore, the 11th Circuit held that "Haynes requested in his complaint that the district court direct Hooters to continually update and maintain its website to ensure that it remains fully accessible. Accordingly, even if Hooters' website becomes ADA compliant, Haynes seeks injunctive relief requiring Hooters to maintain the website in a compliant condition. Thus, . . . there is still a live controversy about whether Haynes can receive an injunction to force Hooters to make its website ADA compliant or to maintain it as such."16 In Haynes, the business in question had brick-and-mortar locations, supplemented by the website at issue, and plaintiff's action challenging the lack of ADA compliance by that website presented "live" questions in the opinion of the 11th Circuit.
However, in Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., the lawsuit was filed under the ADA by retired disabled persons challenging a retirement plan negotiated to include differing benefits depending upon whether one retired "early" at age 55, at the "normal" retirement age of 65, or "early" due to disability. Among the holdings of the 7th Circuit Court of Appeals, for purposes of this article, was the following:
The plaintiffs have, however, another string to their bow. They appeal to the public accommodations provisions of the Act (Title III), which forbid discriminating against disabled persons with respect to access to places of public accommodation . . . . The defendant asks us to interpret "public accommodation" literally, as denoting a physical site, such as a store or a hotel, but we have already rejected that interpretation. An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store . . . . The site of the sale is irrelevant to Congress's goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.17
The 7th Circuit had previously held, in Doe v. Mutual of Omaha, that:
The core meaning of [Title III, section 302(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) . . . that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.18
Similarly, in the U.S. District Court for the District of New Hampshire (in an unpublished opinion), the court denied a defendant's motion to dismiss a challenge to its website wherein defendant argued it lacked a "nexus with a physical 'brick-and-mortar' location" and therefore did "not constitute a 'public accommodation.'"19 However, the same court acknowledged the deepening Circuit split, between those decisions in the First and Seventh Circuits on the one hand, and those in the Third, Fifth, Sixth and Ninth Circuits on the other,20 wherein "the majority of Courts of Appeals that have addressed this issue require a 'public accommodation' to be an actual, physical space or have a nexus to an actual, physical space, such that stand-alone websites may not be considered 'public accommodations.'"21 It is important to note, though, that even those courts requiring the establishment of a "nexus" do thereafter hold that websites having such nexus must be compliant with Title III of the ADA, for use by persons with and without disabilities alike.22
In New York State, while there appears to be little case law directly on point, the cases that exist line up with the holdings of the federal courts in the First, Second and Seventh Circuits.23 First, New York courts have held that provisions of the New York State Human Rights Law "must be liberally construed to accomplish the purposes of the statute"; and indeed the provisions of both the State and New York City laws are "construed 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'"24 Furthermore, as recently as August 2017, it was stated that "[w]hether a website itself is a 'place of public accommodation' or an 'accommodation, advantage, facility or privilege' of a retail store appear[ed] to be an issue of first impression under the NYSHRL."25 The Andrews court made clear, though, that "[o]ver time, the New York State Legislature has 'repeatedly amended the statute to expand its scope,' specifying that the list of places of public accommodation 'is illustrative, not specific.' . . . 'This history provides a clear indication that the Legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally.'"26
The Andrews court, citing to both the U.S. Power Squadrons case in New York, and the case of National Organization for Women, Essex County Chapter v. Little League Baseball, Inc., in New Jersey, held that a place of "public accommodation" need not have a fixed location or real estate, such that in New York, "place" is "a 'term of convenience, not limitation.'"27 Ultimately, in Andrews, the U.S. District Court for the Eastern District of New York, looking to New York law as construed and interpreted consistent with the ADA, determined that "[t]hrough plaintiff's assertion that he is unable to use the website due to his disability, he has stated a claim that [defendant] . . . violated the NYSHRL," and defendant's motion to dismiss the discrimination claim was denied.28
Conclusion - a "Compliant" Website?
If your law firm - like virtually all 21st Century law firms - utilizes a website as part of your business and marketing activities, what then can we take from the above discussion in this area that has deeply divided courts across the nation? In the opinion of this author, there are two very important points not to be ignored or minimized.
(1) If your firm has a brick-and-mortar physical location, as many if not most do, then the law appears clear across all jurisdictions under the ADA (and those applying New York law) that your website must be fully compliant with Title III of the ADA and the provisions of the New York State Executive Law (Human Rights Law) and Civil Rights Law for unimpeded use by all persons regardless of disability.29 Your website must, for instance, be compatible with screen readers for the visually impaired, or with similar services and products for the hearing impaired, as but one example for compliance.30 Some would argue that the benefits to law firms extend beyond avoidance of liability - "There is a strong business case to be put forward for pursuing web accessibility for your law firm in 2018. The benefits go beyond minimizing litigation risk, to include corporate social responsibility, financial returns, and benefits to the technical aspects of your firm's digital presence."31
(2) If your law firm is completely virtual, and has no "nexus" to a physical real estate or brick-and-mortar location, then you should be certain to identify the holdings of the courts (and the provisions of the state/local statutes) in your jurisdiction/Federal Circuit, such that you do not run afoul of the protections of the ADA when it comes to users qualifying for accommodations when accessing your website and web services.
The above is meant to provide food for thought and consideration, at least until some future time when the Supreme Court of the United States might resolve the enduring Circuit split, or the Department of Justice re-starts rule-making under the ADA to specifically address websites. In the meantime, owners of websites may look to the Web Content Accessibility Guidelines (WCAG 2.0) provided by the World Wide Web Consortium (W3C). The WCAG is purely advisory in nature, and provides four Principles of Guidance for law firms, including: "WCAG Principle 3: Understandable: The information and operation of the website's user interface must be understandable. This means that the content on your site should appear in a predictable and standard way that is intuitive for readers, and readable and understandable for assistive devices."32 Employing all of the WCAG Principles may simply not be cost effective for solo, small and medium size firms, but again the Principles are not mandatory - and, indeed, courts have held that the WCAG 2.0 can be utilized as an equitable remedy for non-compliance, but not as a basis for initial liability in the case of an alleged ADA violation; it is guidance in the absence of DOJ rule-making.33 One may also look to the supplementary WCAG 2.1 (June 5, 2008) for further guidance (WCAG 2.1 augments, but does not replace or supersede, WCAG 2.0).34 While advisory, the WCAG are considered by some to be the "gold standard,"35 and perhaps may be thought of in a similar fashion to the Sedona Conference principles and best practice guidelines issued prior to the Federal Rules of Civil Procedure and Federal Rules of Evidence amendments that specifically addressed eDiscovery and electronically stored information.36
In closing, keep one final issue in mind: Acting contrary to (1) or (2) supra, or the guidance of WCAG - resulting in discriminatory impact on some Internet users - might not only result in violations of law and concomitant civil liability, but also in violations of ethical rules possibly resulting in professional discipline in those jurisdictions having adopted the specific language of ABA Model Rule 8.4(g).37 Be forewarned, be cautious, and beware.