When you think of the Americans with Disabilities Act (ADA), you probably think of it in terms of the requirements it imposes on employers, such as obligations not to discriminate against employees on the basis of disability, or the obligation to make reasonable accommodations for disabled employees. However, the ADA has another important aspect that is less frequently discussed but equally applicable to businesses: the ADA requires equal access to places of “public accommodation,” which includes, but is not limited to, restaurants, retail stores, movie theaters, and recreational facilities. As businesses begin to engage in more online sales and marketing, a new question has arisen under the ADA: do companies have a legal obligation to make their websites as accessible as their stores? Courts have recently been faced with this question. Although the majority of courts have determined that a website is not a physical place, and, therefore, is not covered by the ADA, some courts, including the United States District Court for the District of Massachusetts, have held otherwise.
In June 2012, in National Association of the Deaf v. Netflix, Judge Michael Ponsor of the United States District Court for the District of Massachusetts became the first Judge to find that the ADA applies to website-only businesses. In that case, the Association argued that Netflix violated the ADA by failing to provide closed captioning on most of its programming streamed over the Internet. Thus, deaf individuals were denied the same access as those without hearing impairments. Netflix requested that the court dismiss the Association’s claims, arguing that the ADA only applies to physical places, and, thus, does not apply to website-only businesses. Judge Ponsor denied Netflix’s motion and allowed the case to proceed. In doing so, he reasoned that places of public accommodation are not limited to physical structures, especially in an age when business is increasingly conducted online. Further, Judge Ponsor pointed out that web-based businesses did not exist when the ADA was passed in 1990, and, therefore, the fact that websites are not listed in the statute as places of public accommodation was not a valid argument against interpreting the statute to include them.
With differing opinions on the matter, the United States Department of Justice is expected to issue new regulations on website accessibility later this year. These regulations could take a broad view of the ADA and provide regulations pertaining to websites. These regulations and the rulings of the courts will be important for businesses to follow, as they may require upgrades and better access to their company websites.