United States: COVID-19 Causing A Surge In E-Commerce—Is Your Website Accessible?

The coronavirus epidemic is causing a spike in online shopping, with states issuing stay-at-home orders and mandatory closures of nonessential businesses. McDermott Will & Emery says e-commerce businesses should be on high alert for litigation alleging that websites are not accessible to individuals with disabilities and provides best practices.

From restricting restaurants to take-out only, to non-essential retail closures, the Covid-19 pandemic is undoubtedly having a severe impact on businesses.

In light of these restrictions, consumers have resorted to making purchases online, perhaps more than ever before. With this surge in e-commerce activity, combined with a flurry of litigation alleging that websites are not accessible to individuals with disabilities, this article highlights key considerations for e-commerce businesses.

Legal Landscape

In an effort to ensure that websites are accessible to the general public, regulators and courts have adopted accessibility standards based on the Web Content Accessibility Guidelines (WCAG). Title III of the Americans with Disabilities Act (ADA) provides a broad mandate to private entities that are designated as places of public accommodation within the statute.

The accommodations required are not merely physical such as ramps for wheelchairs or braille on signs for the blind. Indeed, telephone and telecommunications service providers must provide disability accommodations in their devices and software if readily achievable, and airlines must conform their primary website to WCAG standards.

There are also specific rules applicable to the healthcare industry, such as Section 508 of the Rehabilitation Act and Section 1557 of the Affordable Care Act, which require WCAG 2.0 compliance for government agencies. For private providers, the Office for Civil Rights stops short of requiring WCAG 2.0, but strongly suggests that it be used for determining website accessibility.

Americans with Disabilities Act

Beyond regulatory enforcement, the ADA provides plaintiffs' attorneys with a potential payday when they troll the Internet and identify websites that do not conform to WCAG standards.

While the Department of Justice's (DOJ) position was that certain websites qualify as places of public accommodation, it later acknowledged that its interpretation may have been incorrect, noting that "inconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to Web sites of entities covered by title III." Title III prohibits discrimination in places of public accommodation and states that discrimination includes: "[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, ."

However, to prevail on a website accessibility claim, plaintiffs must show that, among other things, the defendant is a private entity that owns, leases, or operates a place of public accommodation. Title III includes a long list of examples of private entities that qualify as "public accommodations", provided they "affect commerce."

U.S. Supreme Court's Denial of Certiorari in Robles v. Domino's Pizza

The U.S. Supreme Court recently denied certiorari in Robles v. Domino's Pizza LLC, leaving in place the Ninth Circuit's decision applying Title III to websites-which have a nexus to Domino's physical locations that are places of public accommodation-and thus requiring Domino's to provide "auxiliary aids and services" under 42 U.S.C. § 12182(a).

The Ninth Circuit ruled in plaintiff's favor, finding that "[t]he statute applies to the services of a place of public accommodation, not services in a place of public accommodation." It also rejected Domino's due process argument that it cannot be required to comply with WCAG 2.0 because it is a privately-developed, voluntary standard, not a regulation subject to the notice-and-comment rulemaking process.

In doing so, the court concluded that a district court may require WCAG compliance as a remedy under the ADA if it finds that the website violates the statute.

'Physical Nexus' Requirement-Federal Courts Are Split

Courts across the nation are split on what it means for a website to be considered a place of public accommodation under the ADA. The Ninth Circuit, discussed above, finds that the ADA applies to websites if there is a "nexus" between the website and the company's "physical space" open to the public.

For example, in Earll v. eBay Inc., the Ninth Circuit concluded that eBay is not subject to the ADA because its services are not connected to any "actual physical place." Courts in the Third, Sixth, and Eleventh Circuits share this view. However, courts in the First, Second, and Seventh Circuits have adopted a more expansive definition of a "place of public accommodation" encompassing more than actual physical structures.

State Analogs to the ADA

There is a recent flurry of activity at the state level, particularly in California, regarding website accessibility. California's Unruh Civil Rights Act (Unruh Act) prohibits businesses from denying "full and equal accommodations" based on disability or other characteristics. Unlike Title III, which only permits injunctive relief, the Unruh Act provides monetary relief up to three times actual damages, but not less than $4,000 per offense.

Best Practices

Given that there is a growing trend towards adopting WCAG standards and an increase in website accessibility lawsuits, there are several best practices for companies:

1. Train personnel on accessibility requirements and WCAG standards.
2. Test the website against WCAG standards (through independent consultants or user testing).
3. Retain testing documentation to demonstrate that users with disabilities can fully use the website.
4. Assess potential areas of non-conformance with WCAG standards.
5. Work with internal/external technical teams to implement accessibility features into the website.
6. Develop an accessibility policy that informs users about the company's accessibility practices.
7. Consider including a link to the website accessibility policy on every webpage, including a reporting option that is appropriately routed to address accessibility issues.
8. Regularly audit the website to assess its level of accessibility (particularly after website updates).
9. Engage legal counsel to minimize litigation risk associated with website accessibility issues, including whether the ADA is applicable to the company's website in light of the current state of the law.