Lessons from the Pandemic: Congress Must Act to Mandate Digital Accessibility for the Disabled Community

Shawn Grant* September, 2021

Abstract

The upheaval and disruption created by the COVID-19 pandemic has left some of our most vulnerable, the disabled community, facing increased discrimination and hardship due in part to lack of access to websites and other digital technologies. The pandemic has laid bare the extent of our dependence on technology and the perils faced by those who are unable to access that technology. This Article identifies the regulatory, judicial, and legislative failures to resolve the issue of whether digital technologies are “places of public accommodation” under Title III of the Americans with Disabilities Act. It then calls on Congress to enact a new title to the ADA which clearly mandates the removal of barriers to website accessibility, while taking into account the impact on businesses and other entities that may be subject to accessibility requirements.

Introduction

If you are reading this Article, it likely means that you were able to access a website where this Article is available. There are, however, millions of people who will not have access to the information in this Article, or equal access to education, healthcare, and numerous other services, because many of the websites and digital platforms that provide these resources are not accessible by people who are disabled. Website accessibility means that websites and other digital technologies are created and designed so that people with disabilities can perceive, understand, navigate, and interact with the web.¹ As developers, engineers, and programmers have continued to craft the internet into a necessity of modern life, they have also erected barriers, obstacles, and minefields to web access. Images, graphics, and documents that are incompatible with screen readers and other assistive devices and a lack of audio and captioning create barriers to accessibility. COVID-19 has exacerbated the impact of these barriers.

The COVID-19 pandemic upended life in the United States and the rest of the world. The ways in which much of the population has managed life under restrictions imposed during this crisis have made clear that, more and more, consumer purchases are made through a wide range of digital platforms, online technologies, and mobile applications—and interactions for goods and services are increasingly web-based, including through entities without a brick-and-mortar presence. Life under these restrictions has highlighted how increasingly dependent we are as a society upon computers, tablets, smartphones, and other devices to meet even basic needs for goods and services and to communicate. During the pandemic, we have faced what are likely temporary challenges regarding accessibility—barriers to effective education, banking, employment, transportation, and other needed goods and services. For many disabled Americans,² however, these are hardships they have faced every day, long before the pandemic. Title III of the Americans with Disabilities Act (ADA) was enacted to ensure that “places of public accommodation” are accessible to the disabled community.³ It is unclear, though, whether particular websites or other digital platforms fall within the scope of the ADA. The pandemic has both exacerbated and underscored the hardships created by lack of access to services and products available online.

Amidst the growing pandemic, many states and localities implemented restrictions beginning in February and March 2020 in an effort to slow the spread of COVID-19. These restrictions limited how frequently and the circumstances under which people could leave their homes. Schools closed,⁴ and many state and local governments suggested or required that non-essential workers stay home, except to perform essential errands.⁵ Under the more stringent restrictions, non-essential businesses could not open; those who could, worked from home; and restaurants could offer only takeout or delivery services.⁶ For individuals particularly vulnerable to COVID-19,⁷ the risks of going out were greater, and the CDC recommended heightened caution.⁸ Use of the internet and mobile applications (apps) skyrocketed because for many, these platforms became their primary means to access needed goods and services and their only way to access schools or colleges. Online retail giant Amazon saw demand and revenues increase dramatically during the pandemic⁹ as did other online retail services.¹⁰ Grocery delivery services were swamped with requests.¹¹ Many people used online apps or restaurant websites to have restaurant meals delivered.¹² Registrations for online courses soared.¹³ Zoom, an app which allows video and audio communication as well as screen sharing among groups, became a familiar noun and verb.¹⁴ While some could rely on technology or the assistance of others, those unable to access the internet or mobile apps did not have it as easy. Trying to secure food, toiletries, household supplies, needed medications, and even non-emergency medical consultations proved very difficult. This increased reliance on digital platforms during COVID-19 has made the digital divide even clearer. Disabled people often lack full access to the array of resources required to carry out the basic necessities of daily life during the “new normal.”¹⁵

The ADA was enacted more than thirty years ago. At that time, lawmakers could not have imagined technology that would make working from home and online learning possible. The reach of Title III of the Act, which prohibits discrimination against the disabled with respect to places of public accommodation,¹⁶ has not kept pace with the rapid progress in digital technological innovations; courts struggle to apply a twentieth-century statute to twenty-first century technology. As one commentator put it, the “ADA is analog in a digital world.”¹⁷

As discussed in Part I, there is currently a lack of cogent guidance from the Department of Justice (DOJ), Congress, and the judiciary as to how to interpret the phrase “place of public accommodation.” The lack of agreement as to whether websites and mobile applications are covered under Title III of the ADA disadvantages both consumers with disabilities and businesses. These businesses operate in an environment of uncertainty regarding the applicable legal standards for today’s ever-advancing technologies. Since 2013, the number of cases filed under Title III has increased sharply, plateauing only during the first wave of the pandemic.¹⁸

Digital accessibility is more important than ever. Accessibility issues can no longer be subject to the haphazard development of case law through the circuit courts. Rather, prompt federal legislative action must establish a statutory mandate that consistently secures access for the disabled to websites and other emerging technologies.

This Article argues that Congress must, without further delay, end the discrimination against people with disabilities. Lawmakers should enact cogent legislation that provides guidance to private entities about making their websites and other technologies accessible.¹⁹ Part I provides a brief review of the ADA’s history and the judicial and regulatory landscape around interpreting and enforcing Title III. This Part emphasizes that Title III, as it is currently written and interpreted, fails to adequately address the digital accessibility problems faced by the disabled community. Part II discusses the impact that our increased dependency on the internet due to the COVID-19 pandemic has on disabled communities already suffering from the inequalities of a digital divide. It also addresses the economic impact of COVID-19 and burgeoning ADA website accessibility litigation on businesses that, due to lack of guidance, do not know whether, or even how, to make their websites compliant. Part III explores the competing concerns that new legislation must address, discusses the strengths and weaknesses of various legislative proposals, and offers requirements for effective legislation. The Article concludes that Congress should create an additional title to the ADA to address the accessibility of websites, mobile apps, and future technologies. This title should set clear guidelines regarding coverage and include a statutory mandate for promulgation of regulations.

I. Title III as Currently Written and Interpreted Fails to Secure Digital Access for the Disabled

A. The Statutory Landscape

Enabling those with disabilities to “exercise their rights and participate in mainstream American life” was one of the noble goals of the Americans with Disabilities Act of 1990.²⁰ To achieve that goal, Title I prohibits discrimination by private employers, state and local governments, employment agencies, and labor unions “against qualified individuals with disabilities in applying for jobs, hiring, firing and job training.”²¹ Title II prohibits discrimination by state and local government entities in services, programs, and activities, and “extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1971, as amended, 29 U.S.C. 794, to all activities of state and local governments regardless of whether these entities receive Federal financial assistance.”²² Title III, at issue here, provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”²³ “Public accommodation” is referenced in the definitions section in the statute, which provides that “[t]he following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect interstate commerce,” and then lists twelve categories of businesses or facilities, including hotels, restaurants, theaters, sales or rental establishments, schools, day care facilities, recreation facilities, and service facilities, including professional offices.²⁴ While the text reveals the legislature’s intent to make the scope of the statute clear, Congress did not specifically define “place of public accommodation.” This oversight has been the primary obstacle to applying Title III to websites.

Discrimination under Title III includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”²⁵ Such a failure is not discrimination if “the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.”²⁶ Discrimination may also be “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”²⁷ As with the previous subsection, an entity can avoid liability if it can demonstrate that taking such steps would fundamentally alter the nature of such goods or services, or “would result in an undue burden.”²⁸

Although the ADA aims to ensure that everyone can participate in mainstream American life, how we live has undergone a sea change from the time the ADA was enacted. The internet and the World Wide Web as we know it today did not exist in 1990.²⁹ Although the legislative history of the statute states that “the types of accommodations and services . . . should keep pace with the rapidly changing technology of the times,”³⁰ only the most visionary legislator could have imagined business and communication conducted through smartphones, video conferencing, or social media. Thus, while the ADA provides relatively clear guidance regarding physical barriers, it fails to do the same for the digital world.

Not surprisingly, much early Title III litigation involved physical barriers to access.³¹ However, as early as 1994, courts began to consider whether Title III of the ADA applied only to physical spaces,³² a significant issue in determining the statute’s application to websites. By 1999, the World Wide Web Consortium issued its first set of guidelines for website accessibility,³³ and the National Federation of the Blind filed its first case regarding the accessibility of an internet-based service.³⁴ Scholars and commentators debated whether websites were places of public accommodation under Title III.³⁵ In light of these developing issues, Congress held hearings in 2000 “to consider the impact of the ADA on the internet.”³⁶ The subcommittee Chair noted that the federal government planned to issue regulations in 2000 regarding the accessibility of federal department and agency websites.³⁷ The subcommittee heard from two panels. The first panel addressed technical issues, as well as whether the ADA was “an appropriate vehicle for increasing access to the internet by the disabled.”³⁸ The second addressed “the legal and policy implications of the ADA’s application to private internet sites.”³⁹ But despite the attention, no amendments were made to Title III at that time.

Congress passed the ADA Amendments Act in 2008.⁴⁰ The primary purpose of the amendments was to broaden the definition of “disabled,” which the Supreme Court narrowed under a series of rulings.⁴¹ Despite the emerging question of Title III’s applicability to websites, Congress did not include clarifying amendments to Title III at that time. None have been made to date.⁴²

Although Congress has not amended Title III with respect to websites, it has enacted other legislation governing digital technology. For instance, in 1998, Congress amended § 508 of the Rehabilitation Act of 1973 to add accessibility requirements for websites operated by the federal government.⁴³ More broadly, § 508 mandates that “electronic and information technology” of federal agencies and departments be accessible to persons with disabilities, including federal employees and members of the public seeking information and services.⁴⁴ Congress updated § 508 in 2017 to require, inter alia, that websites (and other digital technologies) comply with the Web Content Accessibility Guidelines (WCAG) 2.0 standard.⁴⁵ Although § 508 goes beyond the requirements of the ADA, its implementation was widely criticized for not going far enough. Many of its proponents saw its implementation as a missed opportunity to use the federal government’s procurement power to extend greater internet accessibility to the disabled community.⁴⁶ Instead, § 508 has been largely limited to ensuring that “federal employees” have access to technology within the workplace.⁴⁷ Another criticism of § 508 is the lack of consistent guidance and enforcement.⁴⁸

The Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA) requires that federal laws regulating communications, media services, content, and equipment be updated to increase accessibility for users with disabilities.⁴⁹ The CVAA provides guidelines for video programming and telecommunications—including electronic messaging, video chat, and internet-based voice chat and captioning of video content delivered through the internet.⁵⁰

Several countries outside the U.S. have enacted legislation mandating that private entities make their websites accessible to people with disabilities.⁵¹ A number of international conventions also support the idea that access to information and technology such as the internet is a human right. In 2016, a report from the Human Rights Council of the United Nations General Assembly declared that access to the internet is a human right.⁵² However, as discussed below, Congress has failed to directly address the issue of access to websites and other platforms. The pandemic underscored that this failure must be remedied.⁵³

B. The Case Law

A major impediment to applying Title III to websites is the phrase “place of public accommodation,”⁵⁴ as courts struggle to determine if a website is such a “place.” Early Courts of Appeals cases, most involving insurance or benefit plans, influenced this area of law. Some courts held that a physical location was required to constitute a place of public accommodation,⁵⁵ while others disagreed and held that a physical location was not necessary to establish a place of public accommodation.⁵⁶ The first two cases to specifically mention websites or the internet did so in dicta, since neither case actually involved the internet or a website.⁵⁷ The first case involving internet services was filed in 1999,⁵⁸ and the first reported decision came in 2002.⁵⁹ With no direct circuit precedent, courts addressing the question of website accessibility generally interpreted Title III’s applicability with reference to earlier rulings as to whether “place of public accommodation” or “public accommodation” requires a physical location.

Most decisions now acknowledge at least some circumstances in which a website may constitute a “public accommodation” or “place of public accommodation,” but those circumstances vary among the circuits. The cases may be roughly divided into three categories, and there may now be a fourth with the Eleventh Circuit’s recent decision in Gil v. Winn-Dixie Stores, Inc.⁶⁰

In the strictest view, the requirement of a physical place has meant that a business that has no brick-and-mortar presence and operates only through a website is not subject to Title III. Under this interpretation, courts have held that popular sites such as Netflix,⁶¹ eBay,⁶² and Facebook⁶³ are not places of public accommodation because they “operate only in cyberspace.”⁶⁴

In the more prevalent intermediate interpretation, a website is subject to Title III if it has a nexus to a physical location. The most noted recent example of the nexus test is the Ninth Circuit’s decision in Robles v. Domino’s Pizza, LLC.⁶⁵ In Robles, the blind plaintiff alleged that Domino’s violated Title III of the ADA by failing to make its websites and mobile apps fully accessible to users who are blind or visually impaired.⁶⁶ The district court held that although the ADA applied to Domino’s website and app, under the primary jurisdiction doctrine, applying the ADA in the absence of clear guidance from the DOJ regarding web accessibility would violate Domino’s due process rights.⁶⁷ The Ninth Circuit agreed with the district court that the ADA applied to Domino’s website and app.⁶⁸ The court reasoned that Title III and DOJ regulations required that places of public accommodation “provide auxiliary aids and services to make visual materials available to individuals who are blind.”⁶⁹ The court noted that although customers primarily accessed the website and app outside of the physical restaurant, the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”⁷⁰ Customers used the website and app to locate restaurants and to order pizza for pick up or delivery.⁷¹ Thus, any alleged “inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of accommodation.”⁷² The court found this “nexus” between the website and the services available at Domino’s physical locations to be “critical to [its] analysis.”⁷³ Indeed, the court specifically declined to consider whether the inaccessibility of a website or app of a physical place of public accommodation that does not impede access to the goods and services of its physical location runs afoul of Title III.⁷⁴ The Ninth Circuit reversed the district court with respect to Domino’s due process and primary jurisdiction claims and remanded the case to the district court to determine “whether Domino’s website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates.”⁷⁵

The nexus test as expressed in Robles can lead to the absurd result that some portions of a website might be subject to the ADA and other portions might not.⁷⁶ For instance, a website selling goods might offer home delivery or in-store pickup. Because shopping online for home delivery might arguably not have a “nexus” with a brick-and-mortar store, that portion of the website might not be subject to the accessibility requirements of Title III.⁷⁷ Thus, the nexus test could mean that “[d]isabled individuals have a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home.”⁷⁸

In the most expansive interpretation of the ADA, courts have rejected the argument that website accessibility under Title III requires a nexus to a physical space. Rather, by broadly interpreting the plain meaning of the statutory language and considering its legislative history, these courts concluded that websites—even freestanding websites—fall within the ambit of places of public accommodation.⁷⁹ Thus, a blind plaintiff can state a claim under Title III when the inaccessibility of defendant’s website did not allow the plaintiff to make purchases online for delivery, even though this inaccessibility might not impede the plaintiff’s ability to make purchases at the defendant’s brick-and-mortar stores.⁸⁰ In this view of the statute, courts have found even web-only entities such as Scribd and Netflix to be subject to Title III.⁸¹

The Eleventh Circuit’s recent decision in Gil v. Winn-Dixie Stores, Inc.,⁸² may represent yet another approach. At the time of suit, the website of defendant Winn-Dixie, an operator of a chain of supermarkets, did not allow consumers to make purchases through the website.⁸³ The site did, however, offer two services that were inaccessible to Gil, the legally blind plaintiff. Consumers could use the website (1) to order prescription refills that would be picked up at a store and (2) to link manufacturers’ digital coupons to their loyalty cards so that the coupons would be automatically applied upon checking out at a store.⁸⁴

The district court entered judgment for the plaintiff after a bench trial.⁸⁵ The court declined to decide whether the website itself was a public accommodation.⁸⁶ However, it did conclude that there was a sufficient nexus between Winn-Dixie’s website and its physical location, as the facts demonstrated that “the website [was] heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations.”⁸⁷ Thus, the court held that “Winn-Dixie has violated the ADA because the inaccessibility of its website denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn-Dixie offers to its sighted customers.”⁸⁸

After two and a half years of deliberation, during which the Ninth Circuit decided and the Supreme Court denied certiorari in Robles, the Eleventh Circuit finally issued its decision. The reviewing court vacated the judgment of the district court, but the decision was accompanied by a vigorous dissent.⁸⁹ The court answered the first question posed—whether the website itself a place of public accommodation—with a decided no.⁹⁰ The court stated that the “statutory language in Title III of the ADA defining ‘public accommodation’ is unambiguous and clear” because all of “the listed types of locations are tangible, physical spaces.”⁹¹ The court then addressed the general discrimination provision of Title III⁹² to determine whether the website otherwise violated Title III. The court held that the inaccessibility of the website did not present an “intangible barrier” to accessing the defendant’s goods, services, privileges, or advantages, because the website was not a point of sale, and, although some interactions could be initiated on the website, all had to be completed at the physical location of a store.⁹³ The court distinguished its decision in Rendon v. Valleycrest Productions, Ltd.⁹⁴ In Rendon, the Eleventh Circuit rejected the argument that a game show’s telephone screening system, the only method by which an individual could become a contestant, did not violate Title III because it did not present a physical barrier to the auditorium or studio where the show was recorded.⁹⁵ The court stated:

Title III covers both tangible barriers, that is, physical and architectural barriers that would prevent a disabled person from entering an accommodation’s facilities and accessing its goods, services and privileges . . . and intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges. . . . There is nothing in the text of the statute to suggest that discrimination must occur on site to offend the ADA.⁹⁶

Distinguishing Rendon, the Winn-Dixie court noted that the phone system, which was inaccessible to those with hearing and mobility disabilities, was the “sole access point” to gain the privilege of appearing on defendant’s game show, a physical location, and therefore presented an intangible barrier to a physical location.⁹⁷ By contrast, in Winn-Dixie, the court held that the defendant’s “limited use website, although inaccessible by individuals who are visually disabled, does not function as an intangible barrier to an individual with a visual disability accessing the goods, services, privileges, or advantages of Winn-Dixie’s physical stores (the operative place of public accommodation).”⁹⁸ Thus, in the Eleventh Circuit, a plaintiff must now show that “the inaccessibility of [a] website . . . serve[s] as an ‘intangible barrier’ to [the plaintiff’s] ability to communicate with [the defendant’s] physical [locations], which results in [the plaintiff] being excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical [locations].”⁹⁹

Making the circuit split clear, the Winn-Dixie court distinguished the case from the Ninth Circuit’s decision in Robles.¹⁰⁰ Factually, the cases differed because in Robles, purchases could actually be made on Domino’s website.¹⁰¹ More significantly, the Eleventh Circuit explicitly rejected the “nexus” test relied on by the Ninth Circuit, finding “no basis for it in the statute or in our precedent.”¹⁰² While acknowledging the “significant inconveniences” faced by people with disabilities due to lack of website accessibility, the Eleventh Circuit nonetheless declined to extend the definition of places of public accommodation indicating that the resolution was a “project best left to Congress.”¹⁰³

Given these varying approaches, businesses and individuals with disabilities remain subject to inconsistent rules from jurisdiction to jurisdiction. For instance, a district court in the First Circuit ruled that a place of public accommodation need not be a physical location, and that the website of Netflix, the streaming service, was a place of public accommodation subject to Title III.¹⁰⁴ Less than a month later, a district court in the Ninth Circuit ruled that under Ninth Circuit precedent, the Netflix website was not a place of public accommodation because it was not a physical place.¹⁰⁵

Even parties within the same circuit have faced different outcomes depending on the district court in which the suit was brought. A court in the Western District of Pennsylvania held that a bank’s website was a place of public accommodation because “the alleged discrimination has taken place on property that [defendant] owns, operates and controls – the [defendant’s] website.”¹⁰⁶ By contrast, in the Eastern District of Pennsylvania, a court held that the website of a snack food company was not a place of public accommodation because it was not an actual physical location and had no nexus to a physical location.¹⁰⁷ These results cause needless and expensive uncertainty for businesses and other entities. Moreover, lacking certainty, plaintiffs must resort to piecemeal litigation with respect to particular websites and applications, resulting in sharp increases in the number of cases filed for the last several years.¹⁰⁸

The Supreme Court’s 2019 denial of certiorari in Robles¹⁰⁹ was a blow to those who had hoped for a resolution of the circuit split. It remains to be seen whether a petition for certiorari will be filed¹¹⁰ and whether the sharpness of the circuit split will encourage the Supreme Court to grant such a petition. However, even if the Court does so, it is unlikely that the decision would sufficiently resolve all the issues necessary to ensure access for the disabled community and provide clear guidance for businesses. The Court is unlikely to declare that all websites that offer, or are affiliated with entities that offer, the types of goods and services set forth in the statute are places of public accommodation and thus must be accessible. Anything short of that, such as a nexus test, leaves potential gaps and uncertainty. Moreover, no ruling could provide the necessary guidance as to the scope of coverage and the standards for compliance.¹¹¹

C. The Regulatory Landscape

Although the ADA authorizes the Department of Justice (DOJ) to issue regulations implementing Title III, the DOJ has yet to provide affirmative regulations and specific guidance to private entities regarding both which websites must be accessible and what constitutes an accessible website. As discussed below, in the absence of coherent rules, the DOJ has issued a bevy of potentially contradictory statements as to the breadth of Title III’s accessibility requirements, resulting in confusion and frustration.

In a 1996 advisory letter, the DOJ appeared to assert that the ADA includes protections for website accessibility, writing that “[c]overed entities that use the Internet for communications regarding their programs, goods, or services, must be prepared to offer those communications through accessible means as well.”¹¹² The regulations issued by the DOJ in 2010 did not deal expressly with website accessibility or provide that websites of public accommodations were subject to Title III.¹¹³ Rather, “accessible electronic and information technology,” which would include websites, was added to the examples of “auxiliary aids and services” that a public accommodation might be required to provide in order to ensure “effective communication” with those with disabilities.¹¹⁴ The choice of how to provide the auxiliary aids was left to the public accommodation.¹¹⁵ However, in a 2010 Advance Notice of Proposed Rulemaking (Advance Notice),¹¹⁶ the DOJ stated that it “has . . . repeatedly affirmed the application of title [sic] III to websites of public accommodations,”¹¹⁷ and “believes that title III reaches the Web sites of entities that provide goods and services that fall within the 12 categories as ‘public accommodations,’ as defined by the statute and regulations.”¹¹⁸ The Advance Notice did not go so far as to suggest that Title III mandated that websites of public accommodations be made accessible, but rather allowed the possibility of providing the information or services through alternative means.¹¹⁹ The DOJ acknowledged that, in starting the rulemaking process, it was heeding repeated calls that it provide a coherent regulatory framework.¹²⁰

The promised regulations were never proposed, much less issued. Before it became clear that regulations were not forthcoming, the DOJ’s enforcement arm became quite active during the Obama administration. As a plaintiff, intervenor, or amicus, the DOJ became involved in several litigations or threatened litigations and secured significant settlement agreements or consent decrees with a number of entities regarding accessibility of their websites and mobile apps.¹²¹

In 2016, the DOJ announced that it was soliciting additional public comments on application of technical requirements to websites of Title II entities, i.e., state and local governments and entities.¹²² The DOJ indicated that comments on the 2010 Advance Notice had led to the decision to pursue separate rulemaking regarding web accessibility for Titles II and III and that it would pursue Title II rulemaking first.¹²³ Then, in December 2017, the DOJ announced that it was withdrawing the 2010 and 2016 Advance Notices and that the Department was “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.”¹²⁴ The 2017 Notice admonished that the withdrawn Advance Notices “had no force or effect of law, and no party should rely upon them as presenting the DOJ’s position on these issues.”¹²⁵ The withdrawals were likely responsive to executive orders issued early in the Trump administration, which were intended to reduce or discourage regulatory action.¹²⁶

The failure to issue regulations has been a source of frustration on many fronts. The DOJ’s failure to act decisively leaves businesses unprepared in the face of increased litigation. Even if businesses choose a de facto technical standard, such as WCAG 2.0 or 2.1,¹²⁷ these standards do not carry the force of law,¹²⁸ and cannot guarantee that businesses will not be sued nor the extent of remedies. Cognizant of these issues, 103 members of Congress wrote to the Attorney General in 2018,¹²⁹ asserting that “unresolved questions about the applicability of the ADA to websites[,] as well as the DOJ’s abandonment of the effort to write a rule defining website accessibility standards, has created a liability hazard” affecting their constituent businesses and customers of those businesses.¹³⁰ The letter then called on the DOJ “to state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the Department of a final rule establishing website accessibility standards.”¹³¹ In response, the DOJ disagreed with the assertion that the absence of a specific regulation excused non-compliance with the requirements of Title III.¹³² While the letter noted that the DOJ “first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago,” the DOJ did not take the unequivocal position that websites of public accommodations must be accessible.¹³³ Some members of the business bar took comfort from the letter’s statement that, “[a]bsent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication,” as harking back to the DOJ’s earlier statements regarding alternative methods of establishing effective communication.¹³⁴ Finally, noting “Congress’ [sic] ability to provide greater clarity through the legislative process,” the DOJ looked forward to working with Congress “to continue those efforts,” thus placing the ball back in Congress’s court.¹³⁵

Whether the DOJ will be more active under the Biden administration remains to be seen.¹³⁶ However, as discussed in Subsection III.C.1, regulatory action is unlikely to provide sufficient resolution of the issues.

II. Why Congress Must Act Now

Congressional inaction continues to harm the disabled community as well as entities potentially subject to regulation under Title III. Overcoming barriers to social and economic equity remains difficult for people with disabilities, a disadvantage that the ADA was intended to remedy. Failure to uniformly resolve issues of which websites are subject to Title III and what compliance with accessibility requirements entails has burdened businesses and other entities with an explosive growth in litigation, and uncertainty about whether attempts to make websites compliant will shield an entity from further liability.

A. COVID-19 Exacerbated Challenges Faced by the Disabled Community

Our increased digital dependence during the COVID-19 pandemic underscored existing challenges and created additional barriers for people with disabilities in many aspects of life, including healthcare, employment, education, and access to information, support systems, goods, and services. COVID-19 has disproportionately impacted Black, Hispanic, and low-income communities with respect to rates of infection, mortality, hospitalization, and disease severity.¹³⁷ People with disabilities are disproportionately represented in communities of color.¹³⁸ But even before COVID-19, the disabled community confronted the inequities of the digital, economic, and racial divide. A disabled person in the U.S. is more likely to be poor, more likely to be a minority,¹³⁹ and more likely to lack access to the internet, as compared to someone who is not disabled.¹⁴⁰ Furthermore, most people with disabilities still face web design barriers, such as the failure to provide keyboard connectivity, images and text transcripts, or captions of video and audio that are compatible with assistive technologies such as screen readers and other specialized software.¹⁴¹ In addition, issues such as insufficient color contrast between written information and background, lack of volume contrast between spoken information and other background noises, difficult-to-read font types and sizes, and flashing and blinking content, create additional challenges with website navigation.¹⁴² Although there have been numerous improvements in technology since the ADA was first enacted, these advances have, in recent years, just begun to trickle down to assistive devices for the disabled.¹⁴³ For instance, screen readers, which function by reading the text on webpages, do not work on graphical web pages because they cannot effectively access webpages that contain animation, video, and audio.¹⁴⁴

The effectiveness of the public health response to COVID-19 has been dependent upon the dissemination and receipt of accurate and up-to-date information. Information regarding quarantining, limitations on travel and gatherings, social distancing, and other general information has been of critical importance during the pandemic, especially because most restrictions were imposed on a state or local level and varied widely according to locality.¹⁴⁵ The evolving nature of agency and governmental guidance, sometimes changing on a daily or even hourly basis, made society even more acutely dependent on the internet for communication.¹⁴⁶ However, people who are hearing impaired, deaf, low vision, blind, and cognitively impaired frequently encounter a lack of accessible information online.¹⁴⁷ People who are visually impaired, for example, express concern regarding websites’ lack of audio and Alt Text for images, which would make them accessible to screen readers.¹⁴⁸ In this and other instances, the inability to access information due to web design impedes the disabled community’s ability to access vital, life-saving information.

Access to healthcare has been an ongoing challenge for the disabled, largely due to higher levels of risk factors such as obesity, diabetes, heart disease, smoking, and being physically inactive.¹⁴⁹ Sadly, these and other comorbidity risk factors also place them at greater risk of COVID-19 infections.¹⁵⁰ As doctors’ offices were forced to either shut down or restrict their patient volume in response to the pandemic, more people have shifted to telemedicine as the primary means of obtaining healthcare.¹⁵¹ Features of telemedicine platforms, such as digital check-in, remote patient monitoring, self-scheduling, and other telehealth services, require screen readers or other assistive technologies. People who are disabled rely on these technologies to successfully interface with webpages and mobile apps on computers and smartphones.¹⁵² The lack of enforcement of web accessibility guidelines in virtual spaces also leaves the disabled community vulnerable to other communication interface issues such as “sign language, captions, magnification, color and contrast.”¹⁵³ The inability to access COVID-19 vaccination registration and information on websites has created additional barriers for people who are visually impaired.¹⁵⁴ Hence, while telemedicine and other online services improve access and reduce barriers to healthcare access for many, several barriers and challenges remain for persons with disabilities.¹⁵⁵

In addition to healthcare, people with disabilities also faced challenges getting food and essential supplies. In an effort to avoid public spaces during the pandemic, more people shopped online rather than in person. Many people with mobility impediments depended on delivery of goods, including vital groceries and pharmaceutical items, even before COVID-19 made it unsafe to leave home. Those who have low vision or are blind are now even more likely to seek delivery of such goods. People who are visually impaired and travel unassisted cannot depend on their vision to determine when they are encountering people who are not wearing masks. It is also difficult for them to follow other pandemic protocols, such as “social distancing,”¹⁵⁶ which often requires reading signs on the floor or other visual cues. In the midst of these challenges, accessibility issues regarding websites and mobile apps further impair their ability to purchase needed goods.

COVID-19 closings and restrictions resulted in more people working from home than ever before. Guidance from the Centers for Disease Control and Prevention (CDC) recommended that workers be allowed to work remotely where possible.¹⁵⁷ While the ADA does not require an employer to offer a telework program to all employees, if they offer one to their abled employees, they must extend the same opportunity to their disabled employees.¹⁵⁸ However, for many in the disabled community, this is not an option because they lack the ability to interface with intranet and internet environments at home that would enable them to work remotely.

Access to learning was a critical issue during the pandemic, which further highlighted the inequities in access to education. For many educators, digital accessibility took a backseat to the pressures of converting coursework to digital format in a short amount of time.¹⁵⁹ The shift to remote learning in many states also exposed the large number of students who lacked access to the internet and related technologies.¹⁶⁰ The challenges facing distance learners were multiplied for disabled and differently abled learners.¹⁶¹ Course materials and online texts are often incompatible with screen readers. Although homework assignments and other resources can be made available on webpages, this is of limited use if the webpage itself is inaccessible. Many schools utilized Zoom, learning management systems (LMS) such as Google Classroom, Blackboard, and other platforms to assist with distance learning.¹⁶² While many LMS platforms provide accessibility and support, students with disabilities may still face barriers if instructors create inaccessible pages by failing to include alternate text, using inaccessible PDFs and other digital documents, and showing uncaptioned videos.¹⁶³ Live instruction on platforms such as Zoom, Webex, and Google Hangout generally do not provide American Sign Language interpreters and real time captioning.¹⁶⁴ Dictation assistive technology¹⁶⁵ can assist students, including those who are low vision, blind, or have physical or cognitive disabilities. However, the usefulness of this technology is limited in that it may not always provide an accurate transcription of the voice input.¹⁶⁶

In addition to its impact on the right to equality of educational opportunity, COVID-19 also created widespread voting issues which deprived many of the opportunity to exercise their Constitutional right to vote. During the 2020 election cycle, many disabled voters were denied access because websites and other technologies were not fully accessible. For instance, the election websites of several states were reported to be inaccessible to those with vision problems.¹⁶⁷ While absentee ballots that could be mailed in or otherwise submitted without going to a polling place were available in many states, most did not provide a way for voters with visual disabilities to complete the ballots privately and unassisted.¹⁶⁸ Although the technology for such electronic ballots existed and was in use for military and overseas voters, a number of states failed to offer that option for disabled voters.¹⁶⁹ Indeed, many voters may have been unable to secure any type of mail-in ballots because the application websites were not fully accessible.¹⁷⁰ This lack of access forced many to choose between exercising their civil rights and potentially exposing themselves to COVID-19.¹⁷¹

COVID-19 did not create the disparities in access for people with disabilities. However, the pandemic clarified those disparities and how the disabled community’s exclusion from the benefits of the internet may be a matter of life and death.

B. The Business Community Is in Crisis

Business entities¹⁷² potentially subject to Title III, and the business community as a whole, have been hurt by the uncertainty around whether websites, apps, and other digital technologies are places of public accommodation subject to Title III, and if so, what standard should determine accessibility compliance. Without clear guidelines, a company may still face litigation risk, even if it proactively hires a consultant or expert to create a compliant website. Updating an existing website could, in some cases, cost upwards of hundreds of thousands of dollars¹⁷³ and yet might not guarantee that the company will not be sued for non-compliance.¹⁷⁴ The absence of guidance puts businesses in a catch-22 where they are left unprepared to address litigation regarding website accessibility.¹⁷⁵ “Mom and pop” stores and other small businesses may face the greatest litigation risk.¹⁷⁶ These smaller businesses may choose to settle a lawsuit rather than face the added expense of litigation in addition to compliance costs. There is no shortage of firms offering consulting and other services to companies seeking to make their sites and other digital technologies accessible.¹⁷⁷ However, many entities are finding out that even using these services does not ensure that they will successfully avoid litigation. Companies actively remedying their website violations may still be vulnerable to additional lawsuits.¹⁷⁸ The lack of dispositive information regarding exactly what compliance entails has also led to what is essentially a battle of the experts. For instance, in Alcazar v. Bubba Gump Shrimp, although the defendant believed that the deficiencies of its website had been corrected and had the opinion of an expert to that effect, it lost its motion to dismiss a Title III lawsuit, because the plaintiff’s expert challenged its compliance.¹⁷⁹ In addition, there is a growing number of lawsuits filed against digital consulting firms offering “quick-fix” solutions to businesses seeking to make their websites compliant.¹⁸⁰

At the same time that businesses face accessibility litigation, they also struggle with the crippling impact of COVID-19, which wreaked havoc on the business world and created widespread economic uncertainty. Large numbers of businesses were forced to close and many are unlikely to reopen.¹⁸¹ As many as 25,000 retail stores were predicted to close in 2020, following a record number of closings in 2019.¹⁸² The retail, restaurant, travel, and tourism industries are struggling as a result of pandemic-related closures and travel restrictions.¹⁸³ Small businesses bore the brunt of the pandemic¹⁸⁴ with minority-owned small businesses disproportionately impacted.¹⁸⁵ As online sales during COVID-19 skyrocketed due to consumers’ forced dependency on digital resources and online services, businesses had to revise their business models to try to create new revenue streams. To survive, many businesses were forced to quickly focus on their e-commerce presence by creating or expanding their digital footprints to include additional services such as ordering online and through mobile apps.¹⁸⁶ But without being able to ensure ADA compliance, many teetering businesses may have inadvertently increased their risk of digital accessibility lawsuits. The threat of litigation is significant, as the past several years have seen a dramatic upsurge in Title III accessibility litigation. In 2013, approximately 2,722 cases were filed under Title III.¹⁸⁷ That number jumped to 4,436 in 2014 and was 11,053 in 2019.¹⁸⁸ The total number of website accessibility lawsuits rose 177%, from 814 in 2017 to 2,258 in 2018, with only a slight decline in 2019 to 2,256.¹⁸⁹ Most of these cases are filed by a handful of law firms.¹⁹⁰ The pandemic did not halt the filing of website accessibility lawsuits. Indeed, although the rate of filings decreased in April and May of 2020, the total number of filings for 2020 was 12% higher than the number of filings in 2019.¹⁹¹ One defense attorney expressed the anger and disbelief of his clients at receiving such complaints during this time when their businesses had not been making any money.¹⁹²

Businesses are aware of the economic and social cost of ADA non-compliance. Approximately one quarter of people living in the United States are disabled.¹⁹³ As one commentator put it, “disability is pervasive in society and it is one of the only identity groups everyone will become part of as they age.”¹⁹⁴ Disabled customers in the U.S. represent more than 1.28 trillion in discretionary spending power and are potentially significant contributors to e-commerce revenue.¹⁹⁵ Presumably, businesses would rather invest in changes that would serve those customers rather than in fighting litigation.¹⁹⁶ In the absence of clear guidelines, it is difficult, if not impossible, for companies to achieve compliance. Yet, despite the devastating impacts on business, Congress has failed to act.

C. Proposed Non-Legislative Solutions Are Inadequate

Although various solutions have been proposed by scholars and commentators, these solutions are inadequate and fall short in terms of providing actions that will mandate equal access for the disabled community to websites and other technologies.

1. Without Legislation, Agency Action Is Unlikely to Solve the Problem

a. The Department of Justice

Although the DOJ has had ample opportunity, it has repeatedly declined to provide regulations regarding website accessibility and a technical standard for compliance. The DOJ’s only serious attempt at formal rulemaking on the subject ended abruptly in 2017, when it placed its rulemaking notices on the inactive list after eight years of inaction.¹⁹⁷ It is possible that under the Biden administration, the DOJ will become more active in rulemaking as well as enforcement. Some practitioners anticipate that the DOJ may also take an active role in shaping future Title III legislation by returning to its prior roles of providing regulatory guidance and intervening in lawsuits.¹⁹⁸

One commentator suggested that the DOJ issue a rule expanding the definition of “facility” in its current regulations to include websites.¹⁹⁹ Such a regulatory change, however, would present a challenge, as “facility” has been narrowly interpreted to mean a physical place.²⁰⁰ Alternatively, the DOJ could expand its interpretation of places of “public accommodation”²⁰¹ to include websites, in addition to physical places. The DOJ has made statements supporting the position that websites are places of public accommodation,²⁰² however, it has not taken any regulatory action, and it is not clear that the DOJ has the authority to alter statutory definitions. Moreover, in the absence of formal rulemaking, it is unlikely that any such reinterpretations of places of public accommodation to include websites would be accorded Chevron deference by courts.²⁰³

b. Other Agencies

Given the DOJ’s inaction, some commentators suggest utilizing federal and state consumer protection statutes to address the accessibility issue.²⁰⁴ But because the regulatory and enforcement power of any agency is limited to the authority delegated by Congress,²⁰⁵ any actions taken by the agency will be decidedly narrow in scope. Furthermore, private citizens have limited power to enforce these regulatory schemes. In the case of the Federal Trade Commission (FTC), for instance, although the statute gives the FTC a variety of enforcement tools, there is no private right of action. Thus, there is no provision for a consumer to directly redress a problem.²⁰⁶

(1) The Federal Trade Commission

The FTC has the authority to protect consumers and enforce regulations prohibiting deceptive and unfair trade practices including those targeting certain individuals for discrimination on the basis of prohibited characteristics.²⁰⁷ In the absence of a modification to the FTC Act to specifically address disabilities and website accessibility claims, however, the potential cases within the purview of the FTC would likely be limited to those in which a disabled consumer is forced to pay a higher price because they could not access the discount available on a company website²⁰⁸ or is deprived of information regarding the accessibility of a particular product prior to purchase, such as a mobile or web application or other digital service.²⁰⁹ The general issue of accessibility of websites and other digital technologies would be unlikely to fall within the FTC’s purview without additional facts indicating fraud or some other type of consumer injury that would trigger the FTC Act. The FTC Act also lacks a private right of action, which leaves the disabled consumer no choice other than to file an informal complaint with the FTC pursuant to Section 5 of the Act and continue to endure discrimination in hopes that the FTC decides to issue an injunction against the company to end its deceptive practices.²¹⁰ As of 2019, no FTC cases have focused on discrimination against disabled consumers.²¹¹

(2) The Federal Communications Commission

The Federal Communications Commission (FCC) is responsible for enforcing the Twenty-First Century Communications and Video Accessibility Act (CVAA).²¹² This federal communications law, meant “to increase the access of persons with disabilities to modern communications,” has largely failed its statutory mandate to make “sure that accessibility laws enacted in the 1980s and 1990s are brought up to date with 21st century technologies . . . .”²¹³ Although well-meaning, the CVAA is littered with loopholes and exceptions that allow private companies to obfuscate the CVAA’s mandate to make online video and communication accessible.²¹⁴ Although “more than 86% of companies provide user-generated content as part of their marketing strategy,” the CVAA excludes user-generated content from its closed captioning requirements,²¹⁵ creating additional challenges for disabled consumers to have equitable access to the marketplace. Unlike the ADA and the Rehabilitation Act of 1973, which are modeled after the Civil Rights Act of 1964, the CVAA is structured as a telecommunications law and unlike the ADA, does not have an anti-discrimination focus.²¹⁶

2. The Judicial System Cannot Solve the Problem

As discussed in Section II.B, courts have differed in their approaches to the issues of whether and to what extent Title III mandates website accessibility. While Congress intended that the ADA “keep pace with the rapidly changing technology of the times,”²¹⁷ it is not clear that Congress sought to make the courts solely responsible for clarifying the scope of Title III and many would argue that it is not the appropriate role of the judiciary to create legislation.²¹⁸ Without resolution by the Supreme Court, courts will continue to apply different tests in an effort to determine whether a website is a “place of public accommodation,” thereby perpetuating the circuit split.

None of the tests currently employed by the various circuits is a perfect solution. The strictest view would not provide disabled people with equal access to the internet.²¹⁹ The intermediate view would exclude businesses that are fully-online from the ADA’s coverage.²²⁰ The more expansive view runs the risk of being overly broad as to include all websites.²²¹ For example, this view would necessarily include businesses that host third party user content on their websites and hold them liable for ADA compliance. This would also potentially set up a clash between the ADA and § 230 of the Communications Decency Act of 1996, which provides immunity for operators of websites for the content of their users.²²²

In the absence of Congressional or DOJ action, some commentators have proposed various tests intended to serve as a singular standard. While none of these would ever have the force of law, they are useful in thinking about what a new or revised statute might provide.

One such test is the website accommodations test (WAT).²²³ It abandons the nexus test, as it does not require a connection with a physical place. Instead, it requires an inquiry into (1) whether the website provides goods or services that are “or could be provided by a physical place and (2) whether accessibility is readily achievable.”²²⁴ A website that meets both of these requirements is categorized as a place of public accommodation.

The first part of the test is useful because it eliminates any “nexus” requirement and seems to come close to what Congress might have intended. As to the second part, its author suggests that by analogizing websites to physical structures and the alternatives that make those structures accessible, one can determine whether accessibility is readily achievable. Therefore, one of the advantages of WAT over other tests is that it provides a compliance standard for determining website accessibility.²²⁵

However, there are two related but distinct drawbacks to the WAT test. First, as its author acknowledges, WAT conflicts with the plain language of the ADA.²²⁶ For example, it uses the term “readily achievable” as a standard for website compliance, when the text of the ADA clearly defines that term to apply to the removal of “architectural barriers.”²²⁷ Second, “readily achievable” is not a sufficient compliance standard in and of itself. Similar to the application of the “undue burden” standard, “readily achievable” operates in concert with a compliance standard. For example, buildings and other physical structures are currently required to comply with the “2010 Standards for Accessible Design”²²⁸ unless compliance is not “readily achievable.”²²⁹ Hence, a business need not fully meet all of the requirements of a particular compliance standard because it is not “readily achievable.” On its own, outside of the text of the ADA, “readily achievable” is so vague a standard as to be no standard at all. There are no such standards in effect for website accessibility.²³⁰

Three other suggested tests expand the nexus test by focusing on the relationship between what the website is offering and its connection to commerce or the twelve categories of public accommodations listed in the statute.²³¹ For instance, under the commerce and character-based test, a court would conclude that a website is covered under Title III of the ADA by (1) determining if the website is a private entity that affects commerce and (2) looking at the character of the commercial entity and whether it fits into one of the twelve enumerated categories of places of accommodation.²³² Based on this analysis, the court might end up excluding some websites from coverage under the ADA that should be included because they do not fit into one of the twelve categories.²³³

The storefront test calls on courts to evaluate whether the website in question is acting as a storefront for a business entity that actually has a physical facility.²³⁴ Under the test, “[a]ny website that acts as a storefront for an entity that offers a substantial amount of its goods or services from a physical facility may be subject to Title III if the facility and the website together form an entity that would otherwise fall under one of the enumerated places of public accommodation.”²³⁵ The storefront test differs from the nexus test in that it shifts the court’s analysis from looking for a connection between the goods and services offered by the website and those offered by the physical place,²³⁶ to an inquiry of the “physical” nature of the goods or services being offered and the link between the website and the physical location. Under this analysis, the physical location need not be the provider of goods and services, and instead, the website can act as a storefront.²³⁷

One shortcoming of the storefront test, however, is that while it ostensibly includes a fully online marketplace—such as Amazon, which has a physical location from which its goods are offered by means of its website—it would not include the services of Facebook, because although Facebook’s offices are a physical location, its services are offered in cyberspace.²³⁸ Moreover, where a business, such as Netflix, offered both wholly online goods or services and “physical” goods and services from the same website, coverage under Title III would depend on whether the latter comprise a “substantial amount” of the goods and services.²³⁹ This test, therefore, is an invitation to litigation.

The content test differs from the other tests in that it requires the court to first classify the material offered by the website and then determine “if what the website provides falls within one of the categories provided by Congress in its definition of public accommodation.”²⁴⁰ Both the commerce and character and content-based tests conclude with an analysis of whether the website fits within one of the twelve enumerated categories defining places of public accommodation. But whereas the commerce and character-based test begins with an examination of the “commercial nature and character of the website,” the content-based test focuses on the type of good sold by the website. For example, if the “content” sold by the website is clothing, it would potentially fit in the categories of clothing store or sales establishment, and therefore would be subject to the Title III of the ADA.²⁴¹ Of all the aforementioned tests, the content test may come the closest to allowing the definition of public accommodation to keep pace with changing technologies by shifting the focus away from “venue” towards the particular content that the website is selling.²⁴²

Even if all courts were required to adopt any one of these tests, none of them provides a single standard for ADA website compliance. Ultimately, litigation through the judicial system is a haphazard, inefficient, and expensive way of solving these significant questions about the statute’s application. It has been more than thirty years since the ADA was enacted and more than twenty since the first litigation over web accessibility began. In those decades, although the circuits may have gradually converged somewhat, there has been no definitive resolution and that movement has come at a glacial pace. As noted, when presented with an opportunity to resolve the circuit split, the Supreme Court declined to do so.²⁴³

3. State Website Accessibility Legislation
May Only Compound the Problem

The enactment of digital accessibility laws by individual states is a step towards eliminating some barriers for the disabled community, but these state-level laws also create challenges. Currently, most states have adopted some form of legislation requiring that the websites of their state and local agencies be made accessible to individuals with disabilities.²⁴⁴ Many states also have antidiscrimination statutes that afford some protection to the disabled community. As of this writing, however, California is the only state that has enacted legislation specifically requiring that private companies doing business in that state make their websites digitally accessible.²⁴⁵ Application of the California Consumer Privacy Act (CCPA) raises jurisdictional issues because the CCPA applies not just to companies located in the state of California, but companies that meet particular thresholds.²⁴⁶ Potentially, any business used by a California resident could be subject to the requirements of the Unruh Civil Rights Act and the CCPA.²⁴⁷ Jurisdictional issues will necessarily lead to inconsistencies in the application of state statutes. A California business that has a website that complies with WCAG 2.1 could still potentially be subject to litigation by plaintiffs accessing their website in states which have different compliance standards. State legislation might also result in an increase in the number of website accessibility lawsuits because although the ADA only awards attorneys’ fees, state statutes could potentially provide monetary damages—further incentivizing litigation. Moreover, such litigation would likely involve preemption issues, given Congress’s clear power to regulate interstate commerce.

III. What Should Congress Do?

More than twenty years ago, Congress recognized that the accessibility of the internet had become a significant issue and held hearings with advocates and industry experts to discuss the ADA’s applicability to the websites of private businesses.²⁴⁸ Yet neither then, nor when the ADA was amended in 2008,²⁴⁹ did Congress propose or pass any amendments to the statute or any clarifying legislation. Nor did that happen in the ensuing years, except for two unenacted bills, neither of which came close to fully addressing the issues.²⁵⁰

No one commentator can provide a silver bullet to solve a decades old problem. Nor should Congress continue to propose poorly thought out, myopic legislation. Rather, Congress must undertake a deeper and more serious version of the hearings in 2000. Congress must solicit views and hear from representatives of several constituencies, including the disabled community, the business community, and technical experts. It is possible, however, to consider what legislative action should be taken and to identify the issues that must be addressed. It is also possible to evaluate solutions that have been proposed.

A. Congress Should Amend the ADA to Add a New Title

Some commentators have suggested that Congress should simply amend the definition of “public accommodation” in 42 U.S.C. § 12181(7) to include websites, thereby adding a thirteenth category.²⁵¹ While this proposal might provide some protections for the disabled community by providing a basis for more consistent judicial decision making, it is not a viable quick fix. Simply adding websites to the list of places of public accommodation runs the risk of narrowly focusing on websites while ignoring other existing technologies, such as smart speakers and mobile apps, and fails to provide a framework capable of capturing future emerging technologies.²⁵² In addition, simply adding websites as a thirteenth category leaves open the question of which websites should be considered places of public accommodation. For instance, what would that mean in terms of liability for social media and other platforms that host user-generated content?

Another commentator has suggested adding the following language to Title III: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, whether in virtual or physical space, by any person who owns, leases (or leases to), or operates a place of public accommodation.”²⁵³ While this approach has some initial appeal, the term “virtual space” is vague, and may not be broad enough to encompass technologies that might emerge in the future. In addition, the change would not address whether, as discussed below, there should be differences in coverage or defenses, for “virtual” rather than physical accessibility.

A better option is for Congress to add a sixth title to the ADA. The ADA is divided into five titles, covering the areas of employment rights, public service, public accommodations, telecommunications, and miscellaneous considerations.²⁵⁴ Creating a sixth title allows Congress to unhook the twenty-first century (and the future) from the twentieth century’s place-centric model and take a fresh look at how access to technology should be approached.

B. What Issues Must the New Title Address?

The twenty years of history of this accessibility question make clear that there are at least three major issues that any effective legislation must address.

1. Coverage

Coverage in terms of a new title has two aspects. The first is, what must be accessible? The legislation must be written in such a way that it not only covers current technology but is also flexible enough to include future advances and technologies. The objective should be to alleviate the need for continual amendments in order to keep pace with current technologies.²⁵⁵ In this is area, Congress needs to call on the expertise of those in the technology fields and consult with the disabled community and its advocates.

The second aspect of coverage is more complex and perhaps involves a rethinking of what the statute’s reach should be in light of the changes that technology has wrought. In the brick-and-mortar world of 1990, access to “goods,” “services,” and even “facilities,”²⁵⁶ clearly contemplated removing physical barriers. Although many bemoan the impact on businesses, Title III clearly reaches more than just commercial entities and includes entities, such as schools, which are usually not-for-profit.²⁵⁷ Thus one question to address is whether, given potential costs of compliance, the new statute should carve out not-for-profit entities and leave schools, who receive federal financial assistance, subject to comply with the requirements of § 504 of the Rehabilitation Act.²⁵⁸

The language of the statute might read as follows:

No person, solely due to a disability, shall be denied the equal use or benefits of a private website, mobile application, or other digital technology provided for the purpose of accessing goods, services, or otherwise engaging in commerce with respect to places of public accommodation as defined under Title III of the ADA, as now or hereafter amended.

“Other digital technologies” could be broadly defined to include electronic tools, systems, devices, and resources that generate, store, or process data. Referencing other digital technology would potentially allow the statute to include future technology beyond websites and mobile applications.

Even for entities that provide goods and services, which one might think of as the core of what Title III was intended to reach, Congress must evaluate whether that is the coverage standard when considering websites and other technology. In 1990, when the ADA was enacted, starting a business almost certainly meant an investment in a physical space. Complying with the ADA primarily meant making sure that there were no physical barriers to access to that space. The costs of compliance could be ascertained relatively easily and the obligation to remove those barriers was qualified by a “readily achievable” standard,²⁵⁹ and once accomplished, the compliance was relatively permanent.

With the advent of the internet, however, many goods and services could be provided online without having to make an investment in a physical space. Small businesses could be operated out of homes or shared spaces that no customer or client would need to enter.²⁶⁰ Indeed, the number of such businesses may have increased during the pandemic. In contrast to architectural barriers, technological barriers may be relatively more expensive to remove. In addition, given the dynamic nature of websites, there may be ongoing costs to ensure compliance.

While there is probably no disagreement that online-only internet giants such as Amazon should be subject to accessibility requirements, is the same true for small internet-only businesses or for small local businesses with a limited online presence? This issue might be addressed in different ways. One way may be to specifically define the entities that are subject to the new title. Covered entities could be limited by some measure of “size,” for instance, by revenue.²⁶¹ Another approach is to allow entities to be excused from compliance if they can prove that requirements pose an undue burden.²⁶² While the concept of undue burden is already applicable to Title III, it is not clear whether undue burden is a defense to inaccessibility of a “place of public accommodation” or only to the provision of “auxiliary aids and services.”²⁶³ The new title could clarify that undue burden is a defense to the accessibility requirement.²⁶⁴ It might also incorporate the kind of factors that are considered in determining undue hardship under Title I.²⁶⁵

2. Compliance

How does an entity comply with accessibility requirements? Much of the literature has focused on coverage, with less written about the guidelines that entities use to establish ADA compliance. The W3C is the leading organization setting forth international Web Content Accessibility Guidelines (WCAG) addressing the provision of accessible online content for people with disabilities. WCAG are universally accepted de facto standards. Hence, in the absence of federal legislation or regulatory action, there is no clear legal requirement for private companies to comply with these standards.²⁶⁶ It is unlikely that Congress would adopt a particular standard, nor should it. Congress should, however, give an agency the power to set those standards by passing legislation mandating access to websites and other technologies for people with disabilities. The legislation should include a mandate for the promulgation of regulations regarding digital accessibility standards. The regulation can incorporate by reference the guidelines set forth by a private group such as W3C or introduce guidelines created by some other governmental or quasi-governmental body with the requisite expertise to create standards in this area.²⁶⁷ In either case, to be effective, any Congressional legislation and implementation will require adequate oversight and vigorous enforcement of website compliance standards and re-evaluation when appropriate. Again, it may be time to consider whether the DOJ is the best entity to be given regulatory and enforcement power in this area or if there should be some other agency, existing or to be created, that should have those powers.

Keeping this in mind, and prioritizing compliance, language in a new statute could be drafted similarly to the EU Directive on the Accessibility of Public Sector Websites, by requiring that the company provide “(1) an accessibility statement for each website, mobile application or other digital technology, (2) a feedback mechanism so users can flag accessibility problems or request information published in non-accessible content and (3) require regular monitoring of websites, apps and other technologies by a designated private, state or federal agency and a public reporting of the results.”²⁶⁸

3. Impact on Covered Entities

Any legislation may disproportionately impact small businesses and entrepreneurs due to the potentially high cost of implementing and maintaining compliance. As discussed, part of the solution may be to define which entities are covered or to provide a defense of undue burden or hardship. In addition, clear regulatory standards for compliance should provide guidance as well as defenses.

The proliferation of litigation suggests that the statute should also address enforcement and procedures. It may be that a clearer statute and regulatory scheme will decrease the amount of litigation. It may also be that there should be some procedural steps, whether administrative or otherwise, that a litigant must complete before initiating litigation. But those measures should not create onerous or insurmountable barriers to bringing a private lawsuit.²⁶⁹ As discussed below, some of the Congressional proposals provide hurdles that go too far.

4. Impact on the Disabled Community

Legislation addressing the issue of digital accessibility runs the risk of being too narrow to provide sufficient access to private websites, further perpetuating negative consequences for people with disabilities by continuing to exclude them from full participation in activities of daily living that are increasingly technology-based. While some states are making strides towards creating legislation that expands digital access,²⁷⁰ more favorable outcomes could likely be achieved through national legislation, rather than a patchwork of policies and strategies developed by various states.

C. Recently Proposed Bills Fail to Address the Issues

The recent legislation proposed by Congress has focused on reducing litigation by erecting barriers to the ability of disabled people with disabilities to assert their accessibility rights under Title III rather than eliminating barriers. Both H.R. 620,²⁷¹ and H.R. 8478,²⁷² if adopted, would further marginalize people with disabilities.²⁷³

H.R. 620, the “ADA Education and Reform Act of 2017,”²⁷⁴ makes no effort to address issues of website accessibility. Rather, the bill was a response to increasing complaints from the business community regarding the proliferation of ADA lawsuits over architectural barriers.²⁷⁵ The passage of H.R. 620 by the House of Representatives in 2018 was met with public outcry from the disabled community and numerous advocates, organizations, and agencies.²⁷⁶ A harbinger of a future bill, the requirement of “a notice and cure” period²⁷⁷ for alleged violations of the ADA before a disabled plaintiff is permitted to file a lawsuit to assert their civil rights is inapposite to the bill’s stated purpose of “ensuring greater protection for individuals with disabilities.”²⁷⁸ Extending the time period for remediation of ADA violations would not only dissuade some plaintiffs and their attorneys from pursuing claims,²⁷⁹ but would also diminish the incentives for businesses to comply voluntarily when they can choose instead to simply wait out the time period.²⁸⁰ Moreover, the actual removal of barriers could potentially extend for years, as the business owner would need to meet only the undefined standard of “substantial progress” towards eliminating barriers to access, instead of actual access.²⁸¹ Ultimately, for all of the impediments that it creates for people with disabilities to access the legal system, H.R. 620 fails to provide a remedy for the proliferation of non-meritorious litigation, largely incentivized by state laws which, unlike the ADA, allow a plaintiff to collect compensatory damages.²⁸² It also does nothing to address attorney misconduct which may play a role in the marked increase in litigation.²⁸³

As a follow-up to the flawed H.R. 620, in October 2020, two members of the House of Representatives proposed H.R. 8478, the “Online Accessibility Act.”²⁸⁴ H.R. 8478 would amend the ADA to include “consumer facing websites and mobile applications owned or operated by a private entity” and “establish web accessibility standards for such websites and mobile applications, and for other purposes.”²⁸⁵ H.R. 8478 is disappointing in that it fails to directly address the issue of inaccessibility for the disabled community in a substantive way, is replete with ambiguous language, and, similar to its predecessor H.R. 620, is an effort to protect businesses from increasing litigation at the expense of the rights of people with disabilities by erecting additional obstacles for disabled litigants.²⁸⁶ The disabled community, its advocates, and the legal community have been vocal in their opposition to the bill, which failed to go for a vote before the House during the 116th Congressional Session²⁸⁷ and was then reintroduced in Congress.²⁸⁸

H.R. 8478 is ill-suited to address digital accessibility for a number of reasons. The bill makes no meaningful attempt to define “consumer facing,”²⁸⁹ and thus leaves the task of defining the contours of coverage to any agency, in this case the Access Board.²⁹⁰ That failure disadvantages all parties in that it is not clear whether the phrase is meant to encompass the type of activities in Title III or something more or something less. As such, even with regulatory action, the bill invites litigation as to Congressional intent. In addition, the bill greatly disserves potentially covered entities by failing to give studied consideration to whether some entities should be excluded from the statute’s coverage, or allowed to raise a hardship defense, given the differences in removing physical versus technological barriers.²⁹¹

Inexplicably, H.R. 8478 is limited in scope, covering only “consumer facing websites and mobile applications” and ignoring other current technologies such as kiosks, websites, and employee software²⁹² that make it difficult for people with disabilities to participate in the workforce. The narrow coverage of the bill may also make it more difficult to expand accessibility to include future technologies.

Under H.R. 8478, consumer facing websites and mobile applications must comply with the Web Content Availability Guidelines (WCAG) 2.0 Level A and Level AA standard²⁹³ and are “considered compliant . . . if such website or mobile application is in substantial compliance.”²⁹⁴ Instead of H.R. 620’s “substantial progress,” H.R. 8478 uses a similar term: “substantial compliance.”²⁹⁵ “Substantial compliance” is not defined in the bill. Without a true standard dictating compliance, H.R. 8478 provides companies with no true notice of when they are in compliance with the law. This leaves open the possibility of litigation, as well as inconsistencies within the courts as they grapple with interpreting exactly what “substantial compliance” means.

There is also an “escape clause” in the bill that allows owners and operators who are not in “substantial compliance” to provide “an alternative means of access” that is “equivalent to access the content available.”²⁹⁶ However, H.R. 8478 is unclear, and case law has not specified what constitutes “equivalent.” Notably, in Robles, the appellate court did not address whether “providing a telephone number that customers using screen-reading software could dial to receive assistance” was an effective alternative to having access to Domino’s website and app.²⁹⁷

H.R. 8478 also requires exhaustion of administrative remedies, directly imposing procedural barriers for disabled plaintiffs to file civil lawsuits to force businesses to comply.²⁹⁸ Particularly in discrimination cases, “exhaustion of remedies represent[s] significant obstacles for some of our most vulnerable citizens seeking relief for violations of federal statutes and civil rights laws.”²⁹⁹ Like its predecessor, H.R. 620, H.R. 8478 was decidedly pro-business and focused more on reducing the surge of litigation than on disability rights.³⁰⁰ H.R. 620 and H.R. 8478 lacked support among the disabled community and its advocates. Neither piece of legislation was put up for a vote in the Senate and each died at the end of the legislative term during which it was proposed.³⁰¹ H.R. 8478, the Online Accessibility Act, was reintroduced as H.R. 1100 in February 2021.³⁰²

Conclusion

By failing to provide legislation on the issue of digital accessibility for disabled people, Congress is complicit in perpetuating disability-based discrimination, depriving individuals of full participation in society and, during the pandemic, potentially placing lives at risk. Now, more than ever, it is important for Congress take legislative action to mandate that private businesses provide the disabled community with access to websites and other digital technologies. While there is no easy solution, any workable Congressional legislation would need to be drafted in such a way that it is flexible enough to include future technologies and provide clear compliance guidelines. The Biden administration’s commitment to involving the disabled in the administration and filling the role of special advisor on disability may bode well for future legislation.³⁰³ Experts predict that technology will make human beings “better off” in the future,³⁰⁴ but that will be true only for those for whom those technologies are accessible. When technology is improved for the disabled community, it is improved for everyone.

* J.D., Univ. of Virginia Law School; Assistant Professor, Borough of Manhattan Community College, City University of New York.