ADA and e-commerce: What retailers should know

By Michael Wippler

We are or should be familiar with the Americans with Disabilities Act’s (“ADA”) requirements for accommodating the physically disabled. Wheelchair ramps, handicap stalls, handicap parking, lifts, and other items designed to assist the physically disabled are commonplace. However, the ADA is much broader than this, and the United States Department of Justice (“DOJ”) and the courts are focusing on making the internet more accessible for the visually impaired.

Accessibility of websites is not specifically addressed in the ADA or under DOJ regulations. However, advocates for the visually impaired have long argued that companies are legally obligated to make their websites accessible to the visually impaired. More recently, they have filed suits to press the issue, with some success. In light of these high-profile cases and pressure from the disabled community and its advocates, the DOJ announced plans to propose regulations on web accessibility and has intervened in private litigation to appraise courts of the DOJ’s expansive reading of the ADA.

Starting in June 2008, the DOJ announced its intent to issue regulations on website accessibility. In explaining the foundation for these new regulations, the DOJ stated that while the internet as we know it today did not exist when the ADA was enacted by Congress in 1990, the internet now “plays a critical role in the daily personal, professional, civic, and business life of Americans.”

Even so, many websites are difficult or impossible to use by disabled individuals due to their being designed without accessible features, putting individuals with disabilities at a “great disadvantage” with respect to accessing goods and services, education, social networks, entertainment, and information. Since 2008, the DOJ has repeatedly extended the time for issuing these regulations relying instead on the courts to enforce the DOJ’s interpretation of the ADA.

By contrast, over the last several years the DOJ has intervened in private litigation and has directly refuted arguments that accessibility is not required in the absence of specific regulations. In one such action against H&R Block, the DOJ alleged that assistive technologies long in use by visually impaired individuals, such as screen reader software, refreshable Braille displays, keyboard navigation, and captioning, were not compatible with H&R Block’s website.

As part of a settlement, H&R Block agreed, among other things, to make its website, mobile applications, and tax preparation tool comply with the Website Content Accessibility Guidelines 2.0 AA. Even in cases without DOJ intervention, courts have held that the accessibility requirements of the ADA apply to websites. In a case filed against Netflix, the court ruled that the ADA’s accessibility requirements even applies to web-only businesses, with the court stating that Congress intended for the ADA to adapt to unforeseen changes in technology.

Business Considerations Ignoring the court’s and DOJ’s ADA’s enforcement trend may force retailers to defend themselves in expensive litigation - whether against a private party or against the DOJ. Providing accessibility to a website for the visually impaired entails costs, but those costs are probably significantly lower than the cost of defending an action alleging ADA violations.

Moreover, being proactive and updating a retailer’s website can reap benefits. In addition to lowering litigation exposure, accessible websites makes available a company’s goods and services to a new segment of the market—the visually impaired. And due to the limited mobility that afflicts many visually impaired individuals, this is a market segment that may perform a disproportionate amount of its commerce online.

Thus, for some retailers, the cost of a new accessible website, or of retrofitting an existing website, may be a wise investment.

Michael Wippler is the managing member of Dykema’s Los Angeles office. His practice focuses on business, finance and real estate matters.