Less than a month ago, Himelda Mendez, a legally blind individual, filed a lawsuit against Apple over the accessibility of Apple’s website.. In her complaint, Mendez alleges that Apple’s stores are places of “public accommodation” within the meaning of Title III of the ADA, and that the Apple.com website is a “service, privilege, or advantage” of the stores. As a result, Mendez claims, the Apple is violating its obligation to offer “full and equal enjoyment” of its website to visually impaired individuals.
It seems fairly clear that Apple’s website is inaccessible to visually impaired users utilizing “screen-reading” technology, as many of the website’s graphics do not have the invisible code embedded which allows screen readers to operate properly. Thus, to succeed on this claim, Mendez must prove that Apple.com is indeed a “place of public accommodation” within the meaning of Title III of the ADA. Circuit courts are split on this issue, with some requiring a “nexus” between the challenged service (here, the website’s accessibility) and the “physical place of public accommodation.” While it is entirely possible that she may succeed on this argument, it was almost unnecessary; federal regulators explored mandating website compliance with Title III of the ADA.
While it is entirely possible that she may succeed… it was almost unnecessary; federal regulators explored mandating website compliance with Title III of the ADA.
In 2010, the United State Department of Justice issues an Advanced Notice of Proposed Rulemaking (ANPRM) regarding potential regulations which would have mandated that state and local governments, as well as public accommodations providers, ensure their websites are compliant with the accessibility requirements of the ADA. The Justice Department issued a statement in 2016 indicating that only government websites would have to comply with the ADA. By December 2017, the DOJ backtracked yet again, officially withdrawing the proposed rules which would have mandated ADA compliance for any websites.
Had the DOJ’s proposed rules actually been implemented, Mendez would have a clear cause of action to compel Apple to bring its website into compliance with the ADA. As it stands, Mendez must shoehorn the alleged violation into Title III’s current framework. Such a route is less desirable than that offered by the black letter text of a federal regulation, but it may prove successful nonetheless and achieve the same desired result: accessibility.
Because monetary damages are not available as a remedy under Title III of the ADA, it is unclear what the purpose of a class action would be. Unlike dollars, injunctive relief forcing accessibility cannot accrue across multiple plaintiffs, so the collective bargaining power of one plaintiff seems to equal that of an entire class of similarly situated individuals.
Regardless of the reasoning behind the class action nature of the suit, companies that maintains a website (so, virtually all companies) should watch this case with interest. Several other cases containing similar allegations have been filed in federal courts in New York. If any of these plaintiffs are successful, then any company with online guests may be at risk of a permanent injunction forcing compliance with the ADA. Compliance with Title III of the ADA to ensure equal access to every web page maintained by that company could be a potentially costly endeavor.