The Department of Justice May Soon Decide if the Americans with Disabilities Act Applies to Online Shopping Websites

Thursday, March 28, 2013, by Kaitlin Powers

National groups advocating for disabilities rights assert that online websites should fall under the Americans with Disabilities Act (ADA) and that websites should be accessible to disabled persons in an equivalent manner to physical retail locations. While several jurisdictions have rejected the notion that websites fall within the scope of the ADA, one court recently found that the ADA’s requirement that “public accommodations” be accessible to disabled persons applies to websites as well. The National Federation of the Blind and the National Association of the Deaf continue to mount claims against companies via ADA challenges for website designs which limit usability for blind and deaf persons. As of May 2012, individuals and entities have filed over 15,500 suits alleging ADA violations on websites.  And despite the view of most courts, challengers have had success against entities such as Target and Netflix. Target offered settlement funds and agreed to alter its website after an ADA challenge, and Netflix agreed to make all its content captioned by 2014 after a court found that websites could be subject to ADA requirements.

Now, the Wall Street Journal reports that “[t]he U.S. Department of Justice [DOJ] is expected to issue new regulations on website accessibility later this year that could take a broad view of the ADA’s jurisdiction over websites.” While the DOJ has been considering issues of the applicability of the ADA to websites for several years, it has not issued a definitive answer to the question of accessibility. News that the DOJ may soon act has prompted several companies to prepare for a change in the law. Commentators suggest that, had Congress contemplated widespread internet use when they passed the ADA in 1990, it would have included websites among its list of “public accommodations.” However, others argue that it is dispositive to the question of applicability that Congress did not contemplate the internet when it passed the ADA.

Potential modifications would respond not only to the special needs of blind and deaf persons but also of the needs of those with motor skill impairments and cognitive and intellectual impairments. Modifications might include audio of text and images, labeled videos, simpler language, and more easily navigable websites. Although the cost of including such elements via periodic changes in website design is not particularly steep, companies argue that retrofitting websites to facilitate use by disabled persons could increase website operating costs by 10%.

Recently, the Wall Street Journal reported that “[t]he U.S. Department of Justice [DOJ] is expected to issue new regulations on website accessibility later this year that could take a broad view of the ADA’s jurisdiction over websites

While retrofitting websites may come at a high cost to some companies, advocates for disability rights posit that enhancing the accessibility of websites for disabled persons will result in increased revenues. The threat of litigation and potential benefits of website accessibility have prompted some companies to take a proactive approach and seek the help of disability rights organizations to determine how to increase the ease of use of their websites for disabled persons. Other commentators counter that the return on investment for increasing website accessibility may not be enough to motivate many companies to enhance website accessibility until the Department of Justice actually imposes new regulations on website accessibility. Hence, definitive action by the DOJ may radically alter website use for Americans with disabilities by providing an impetus for redesigning websites for holdout companies.