Are Website & Software Programs Obligated to Comply with the ADA?

The question of whether private websites and software programs must comply with the Americans with Disabilities Act (“ADA”) is a complicated one.

To summarize the lack of clarity on website accessibility, a person with disabilities who has trouble accessing a website or software program should ask two critical questions to determine if they have an actionable violation:

(1) is the private website or software program covered under the ADA? and
(2) if yes, does the website provide the minimum level of accommodation?

Persons with disabilities should pay attention to the legal rules their state follows, as well as keeping up with recent changes to Titles II and III of the ADA. While the Web Content Accessibility Guidelines (“WCAG”) are not legally required, they are a helpful tool for determining whether a website adequately accommodates persons with disabilities. However, if the website is not covered under the ADA and/or provides the minimum level of accommodation under the WCAG standards, then there is likely no actionable violation.

1. Covered Website?

The Muddled Legal Landscape of Online Accommodation

Website and software program ADA compliance is a dynamic and changing area of law. Courts are split as to whether these sites fall under the ADA as “places of public accommodation.” Thus, whether a website must accommodate you under the ADA depends the legal rule your state follows.

Private websites and software programs fall under Title III of the ADA, which states that individuals cannot discriminated against on the basis of disability involving “services . . . of any place of public accommodation.”[1] The ADA defines a place of public accommodation as “a facility operated by a private entity whose operations affect commerce” and fall within various categories, those of which include places of lodging, restaurants, and movie theaters, among others.[2] Thus, the ADA does not specifically enumerate websites and software programs as places of public accommodation.

When interpreting Title III’s definition of places of public accommodation, courts have reached two different approaches: one more stringent and the other more inclusive. The more stringent approach, the “nexus” approach, only considers a website or software program to be a place of public accommodation if the site has a nexus to the company’s brick and mortar location.[3] California state and federal courts have almost unanimously adopted the nexus approach.[4] To find a website or software program a place of public accommodation, this rule typically requires that the site impedes the ability of persons with disabilities to access the company’s physical store. For example, a court found that Target.com was a place of public accommodation because it limited the ability of persons with disabilities to enjoy the goods and services offered in Target stores.[5] However, courts also held that Facebook, Netflix, and an online-only retail store were not places of public accommodation because they were not tied to an actual, physical place.[6] Under this test, websites that limit your access to a physical store will certainly be covered under the ADA, but online-only software programs are likely not.

On the other hand, the First Circuit, and some district courts in the Second and Fourth Circuits, follow the more inclusive rule.[7] This rule considers websites and software programs to be places of public accommodation as long as they fall within one of the enumerated categories of Title III. These courts have explicitly rejected the nexus approach because “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.’”[8] Courts have pointed to the enumerated categories in various ways, such as considering Netflix and an online VR subscription serve as “service establishments,” “places of exhibition or entertainment,” and “rental establishments.”[9] These courts have broadly interpreted Congress’s enumerated categories. Thus, under this test, almost any private website that is inaccessible to a person with disabilities will be considered a place of public accommodation.

DOJ Support & Guidelines

Despite the lack of clarity in judicial precedent as to whether websites and software programs are places of public accommodation, the DOJ has consistently backed the understanding that websites and software programs must comply with the ADA. The DOJ has intervened in numerous cases to hold inaccessible websites accountable.[10] Additionally, the DOJ has entered into many settlement agreements with websites and software programs to require their compliance with the WCAG technical standards.[11]

Most recently, the DOJ has started to amend the ADA to hold websites and software programs accountable. On March 18, 2022, the DOJ published its Guidance on Web Accessibility and the ADA, where it explicitly stated, “the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” Then, on April 24, 2024, the DOJ’s Civil Rights Division published its Final Rule revising Title II of the ADA, which applies to state and local governments.[12] This new rule sets technical standards and regulates web content for websites and mobile apps used by state and local governments. Thus, it is possible that the DOJ may similarly amend Title III as well and explicitly enumerate websites and software programs as places of public accommodation under Title III. However, this ultimately depends on whether the Biden Administration retains office in the next election, and even so, the revision of Title III may take years, as the changes to Title II took over ten years.

2. Does the Website Provide the Minimum Level of Accommodation?

What Does a Website Need to Do to Be Accessible?: WCAG’s Technical Standards on Web Accessibility

While they are not legally required yet, WCAG’s standards, recommended by the DOJ in its 2022 guidelines, are a set of technical standards for websites and software programs to follow in order to accommodate those with disabilities. WCAG’s standards were developed by an array of organizations and are followed globally by prudent businesses who wish to accommodate those with disabilities and avoid litigation.

What does WCAG require? There is no one-size-fits-all solution to accommodation, but WCAG recommends websites be accessible on four levels: perceivable, operable, understandable and robust[13].

• Perceivable: A website is perceivable when all users can comprehend its information using alternative senses, such as captions provided for audio content or descriptions provided for video content.
• Operable: A website is operable when a user can effectively navigate all functionality of the website, such as all content being operable through the use of a keyboard, rather than a mouse, or providing users enough time to read content..
• Understandable: A website is understandable if all users are able to understand the information presented to them and how to use the website, such as providing labels when content requires input from the user or ensuring navigation mechanisms that are repeated on multiple pages are consistent on each page.
• Robust: A website is robust if it can be interpreted by a wide variety of assistive technologies used by persons with disabilities, which requires programming for not just one, but ideally, all types of disabilities.

To obtain an adequate rating, WCAG’s website provides specific examples of ways websites can accommodate persons with disabilities[14]:

• Images must contain descriptive alternative text (ALT text) so people who are blind have a description of an image that accurately conveys its meaning.
• The on-page text must be realizable without disrupting the way the page displays so people with vision disabilities can magnify content and have an easier time reading.
• All form-entry tasks need to exist without a time limit or include an extended, lengthy time limit to accommodate the needs of people who need more time to fill out forms.
• Components that exist across multiple web pages, like navigation, headers, footers, and sidebars, must consistently appear in the same places throughout the site so people always know to find them regardless of what page they’re on.
• Users must be able to navigate your website without the use of a mouse. Users should be able to use the “tab” button on a keyboard to progress through any given page.
• All web pages must use proper heading level structure so users with screen readers can easily navigate the site.

Thus, even if a website is covered under the ADA, it may provide enough accommodation if it meets the bare minimum requirements and the caselaw is very sparse as to what is accessible enough.[15]

So, What is an Actionable Violation?

1. Covered website?

Websites that provide access to a physical, brick and mortar location will certainly be covered under the ADA, even in California. Online-only websites and software programs similar to Netflix and Facebook likely do not have an obligation to comply with the ADA. However, in states such as Massachusetts, Vermont, Virginia, and New York, courts follow a different rule and online-only websites are more likely to be found obligated to comply with the ADA. Persons with disabilities and attorneys pay attention to upcoming changes to Title III of the ADA. Ultimately, if the website is not covered under the ADA, then the business has no legal obligation to accommodate and you will have no actionable violation.

2. Does the Website Provide the Minimum Level of Accommodation?

Even if a website is covered under the ADA, the business may still not violate the ADA if it provides persons with disabilities the minimum level of accommodation. There is no one-size-fits-all solution to accommodation. Even if a user must enlarge text or images to use the website, as long as they can fully comprehend the data after doing so, this may provide the minimum level of accommodation. In all, a person with disabilities should contact an attorney if they have questions, and even though a website may not be legally obligated to accommodate, prudent businesses who wish to avoid litigation may respond well to reasonable requests for accommodation.

• [1] 42 U.S.C. § 12182(a).
• [2] 28 C.F.R. § 36.104.
• [3] See National Federation of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F.Supp.2d 946, 952. (citing Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1115.)(“[C]ourts have held that a plaintiff must allege that there is a “nexus” between the challenged service and the place of public accommodation.”); see also Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, 1047 (holding that Title III treats websites “differently depending on whether they are purely digital or have a physical component,” explicitly rejecting the DOJ’s 2022 Guidance on Web Accessibility).
• [4] Id.
• [5] See National Federation of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F.Supp.2d 946; see also Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898 (holding that Domino’s website is a place of public accommodation that facilitates access to the goods and services at Domino’s physical restaurants).
• [6] See Young v. Facebook, Inc. (N.D. Cal. 2011) 790 F.Supp.2d 1110 (holding that Facebook’s website and social media software are not a places of public accommodation because they do not have a sufficient nexus to a physical location, despite that retail stores sell Facebook gift cards in-store); see also Cullen v. Netflix, Inc. (N.D. Cal. 2012) 880 F.Supp.2d 1017, 1024 (holding that “[t]he Netflix website is not ‘an actual physical place’ and therefore, under Ninth Circuit law, is not a place of public accommodation”); see also Martinez v. Cot’n Wash, Inc. (2022) 81 Cal.App.5th 1026, review denied (Nov. 9, 2022) (holding that an online-only retail website is not a place of public accommodation).
• [7] However, it is important to note that only the Ninth Circuit has squarely addressed this issue–the First Circuit only addressed that an telephone or mail service without a physical location qualifies as a place of public accommodation. See Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc. (1st Cir. 1994) 37 F.3d 12. Thus, because only district courts have adopted this rule, other district courts are not bound by this rule and could decide to adopt the Ninth Circuit’s nexus rule.
• [8] National Ass’n of the Deaf v. Netflix, Inc. (D. Mass. 2012) 869 F.Supp.2d 196, 200 (quoting Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc. (1st Cir. 1994) 37 F.3d 12, 20.).
• [9] See National Ass’n of the Deaf v. Netflix, Inc. (D. Mass. 2012) 869 F.Supp.2d 196, 201 (holding that Netflix is a place of public accommodation because it can be considered as: “a ‘service establishment’ in that it provides customers with the ability to stream video programming through the internet; a ‘place of exhibition or entertainment’ in that it displays movies, television programming, and other content; and a ‘rental establishment’ in that it engages customers to pay for the rental of video programming”); see also National Federation of the Blind v. Scribd Inc. (D. Vt. 2015) 97 F.Supp.3d 565, 576 (holding that a digital library website is a place of public accommodation because it can be considered a “’place of exhibition or entertainment,’ a ‘sales or rental establishment,’ a ‘service establishment,’ a ‘library,’ a ‘gallery,’ or a ‘place of public display or collection.’”); see also Mejico v. Alba Web Designs, LLC (W.D. Va. 2021) 515 F.Supp.3d 424, 435 (holding that a website that sells personalized return address labels is a place of public accommodation because it “qualifies as a ‘sales or rental establishment’ and/or a ‘service establishment.’”); see also Panarra v. HTC Corporation (W.D.N.Y. 2022) 598 F.Supp.3d 73, 80 (holding that an online VR subscription service, referred to as the Netflix of VR, is a place of public accommodation because it falls “within at least one of the following categories: ‘place of exhibition or entertainment,’ a ‘sales or rental establishment,’ a ‘service establishment’”).
• [10] See Statement of Int. of the U.S. in Opposition to Def.’s Motion for Judgment on the Pleadings at 9, National Ass’n of the Deaf v. Netflix, Inc. (D. Mass. 2012) 869 F.Supp.2d 196 (No. 45-30168) (“The Department is currently developing regulations specifically addressing the accessibility of goods and services offered via the web by entities covered by the ADA. The fact that the regulatory process is not yet complete in no way indicates that web services are not already covered by title III.”); see also Compl. in Intervention at 2, National Federation of the Blind v. HRB Digital LLC, (No. 39-10799).
• [11] See Settlement Agreement between the U.S. & Ahold U.S.A., Inc. & Peapod, LLC (Nov. 17, 2014) https://archive.ada.gov/peapod_sa.htm; see also Settlement Agreement under the Americans with Disabilities Act between the U.S. & Rite Aid Corp. (Nov. 1, 2021), https://www.ada.gov/rite_aid_sa.pdf.
• [12] See 89 F.R. § 31320. https://www.federalregister.gov/documents/2024/04/24/2024-07758/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state.
• [13] WCAG 101: Understanding the Web Content Accessibility Guidelines (January 12, 202) https://wcag.com/resource/what-is-wcag/.
• [14] Id.
• [15] See Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (holding that simply listing a telephone number and e-mail address on a website is not enough to provide effective communication that the privacy and independence of a fully accessible website offers).