By Elizabeth Troutman and Jamie Dean

*This article originally was published in The Middle Ground, the newsletter of the North Carolina Middle District chapter of the Federal Bar Association.

If you’re anything like us, a discussion that turns to the topic of software coding elicits panic– “are they going to want my legal opinion about this? Oh no! There’s a reason I didn’t take the patent bar – all those science courses – I can’t even fix the ice maker!”

For many lawyers, the topic of website accessibility conjures a similar response. But here’s why it shouldn’t. Website accessibility is simply an umbrella term used to describe how people with disabilities access the internet. For blind and visually impaired people, the internet has opened a whole world of information that was previously closed - we can manage our finances, buy groceries, and even order our kids’ Halloween costumes without having to overcome the obstacle of going to a physical place. There is software that reads the text on the screen aloud, increases the font size, changes the contrast colors, and allows us to move about using keystrokes instead of a mouse. To do these things though, the information must have been properly coded and labeled when it was originally put on the website.

As hundreds of private businesses and public institutions are learning, the failure to make one’s website accessible can give rise to private litigation or government enforcement actions. Even if such matters are resolved voluntarily, the costs can be significant. And, in the business context, there are no easy ways to prevent the litigation from being repeated. As a result, website accessibility is a growing area of interest that is not likely to diminish in the near future.

Conflict in the Courts -

Title III of the Americans with Disabilities Act prohibits discrimination on the basis of disability in places of Public Accommodation and requires those places to provide reasonable accommodations to individuals with disabilities if necessary to access their services. (42 U.S.C. § 12181 or “Title III”). This is the same law that requires new buildings to be accessible for people with physical disabilities.

While the issue has not been addressed in the Fourth Circuit, many other courts have debated whether the term “public accommodation” as used in Title 3 covers more than physical locations. Compare Earll v. eBay, Inc., 599 F. App’x. 695, 696 (9th Cir. 2015) (holding that, in order to be a “public accommodation,” a website must have a sufficient connection with a physical place), with Morgan v. Joint Admin. Bd., Retirement Plan of the Pillsbury, Co., and others, 268 F.3d 456, 459 (7th Cir. 2001) (rejecting argument that “public accommodation” refers only to a physical site). District courts across the country have grappled with this question specifically with respect to websites. Compare Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1320 (S.D. Fla. Mar. 15, 2017) (holding ADA applies to a website with a sufficient nexus to a physical location) with Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200–02 (D. Mass. June 19, 2012) (holding the ADA applied to Netflix online streaming service, though services were delivered primarily at users’ homes). Importantly, the Department of Justice, which is responsible for enforcing the ADA, has taken the more expansive view, arguing that the ADA applies to websites even without any connection to a brick and mortar location.