Recently, in Walker v. Sam’s Oyster House, LLC, the United States District Court for the Eastern District of Pennsylvania held that a website that is inaccessible to the disabled can form the basis for a disability discrimination claim under the Americans with Disabilities Act (ADA). Given the recent prevalence of ADA “drive by” lawsuits, and since nearly every business in this day and age maintains a website, this is an issue that warrants immediate attention.
In Walker, a visually impaired individual alleged that he was unable to browse a restaurant’s website because of his disability. He alleged that the website utilized a predominantly visual interface despite readily available accessible technology such as alternative text, accessible forms, descriptive links, and resizable text. The plaintiff alleged that he wanted to access the website to find out the restaurant’s location, hours and phone number, and his inability to do so prevented him from accessing the physical location of the restaurant. Although the Court dismissed the lawsuit (but provided leave to file an amended complaint) because the plaintiff failed to specifically plead that he would have visited the restaurant had he been able to find the information he needed on its website, the case is nonetheless instructive. Although, in the Third Circuit, a website by itself is not a place of public accommodation since only physical locations can be places of public accommodation, if there is a sufficient nexus between the website and the physical location of a place of public accommodation then a valid claim may exist. It should be noted that some other Circuits, including the Second Circuit (Connecticut, New York and Vermont) have held that a website itself can be a place of public accommodation regardless of whether there is any nexus to a physical location.
Most brick and mortar businesses, whether the location is owned or leased, are considered places of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are exempt from the ADA's title III requirements for public accommodations. Places of public accommodation that maintain websites must generally make them accessible to people with disabilities, especially those who are visually or hearing impaired, if failing to do so imposes a barrier to accessing the business’s physical location. Generally, for a website to be accessible, written content must be coded for audio translation by vision-impaired users who depend on screen-reader software, and videos must include descriptions for the deaf and on-screen captions for the blind. Moreover, interactive functions must be operable through keyboard commands for people who can’t use a mouse. Failure to comply with the ADA can expose a business to expensive litigation, and the likelihood of having to pay the disabled person’s attorneys’ fees and costs of suit.
If you have questions regarding whether your website must be accessible to the disabled, whether your website is sufficiently accessible to the disabled, or if you have been sued for ADA disability discrimination, please contact Benjamin R. Picker with McCausland Keen + Buckman.