2023 Compliance: Does the ADA Apply to Every Website?

Does the ADA apply to every website?

Well this question, the answer to this question has multiple layers from different angles.

So let’s start off with the law itself: the Americans with Disabilities Act was signed into law in 1990 and it did not contemplate modern digital technology such as websites and mobile apps.

So since the inception of this law there have been no amendments and no subsequent regulation that have addressed this modern digital technology as it pertains to private entities under Title III.

And so the DOJ’s current stance – and the Department of Justice is the regulatory and enforcement agency behind Title II and Title III of the ADA – the DOJ stance is that the ADA does apply to websites.

However, that’s an informal stance, they have not issued actual regulation and Congress has not amended the American Disabilities Act to contemplate modern digital technology.

So there is nothing in the ADA itself that addresses websites and mobile apps; it doesn’t say- the ADA doesn’t say whether or not it applies to websites and mobile apps.

And then it further it doesn’t state how to make that technology accessible and therefore compliant under the ADA.

So with the private litigation, state and federal courts have varied in how- in whether and how the ADA does apply to modern digital technology.

And so in the federal courts there are 11 circuits where these cases heard and in state courts state courts can hear these matters generally. And we have differing opinions.

But, importantly, plaintiffs’ law firms can file in courts that are receptive to “ADA website” claims.

So and plaintiffs moreover plaintiffs’ lawyers can still send demand letters demanding that their a website is not compliant with the ADA or some other anti-discrimination law.

So practically we know that in many courts still in the US – state and federal courts – that these type of claims can be made, but who can they be made against?

And this is where the every website becomes involved.

So on the new ADA.gov it states that under Title III, businesses including nonprofits that serve the public fall under Title III and then these are says these are known as public accommodations.

Okay, and then it list some examples of public accommodations.

But now let’s look at the ADA itself and the and the general rule is no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the good services facilities privileges advantages or accommodations of any place of public accommodation.

And then if we look to the American Disabilities Act ADA Title III Technical Assistance Manual covering public accommodations and commercial facilities it states that in order to be considered a public accommodation with Title III obligations, an entity must be private and it must own lease, lease to, or operate a place of public accommodation.

What is a place of public accommodation?

A place of public accommodation is a facility whose operations affect commerce and fall within at least one of the 12 following categories and then it lists off 12 categories here are some: (1) places of lodging, (2) establishments serving food or drink, (3) places of exhibition or entertainment, (4) places of public gathering, (5) sales or rental establishments and so on.

And then the document says can a facility be considered a place of public accommodation if it does not fall under one of these 12 categories?

No, the 12 categories are an exhaustive list.

However within each category the examples given are just illustrations.

For example, the category sales or rental establishments would include many facilities other than those specifically listed.

So technically your business may not fall under one of these 12 categories and in that case the ADA wouldn’t apply to you.

But practically, it’s really the plaintiffs’ law firms that are enforcing and/or testing to see whether or not the ADA is applied because plaintiff law firms they don’t mind initiating litigation.

Because there’s an asymmetry that exists there’s not much downside for them in filing a complaint or sending a demand letter because they have the infrastructure built in for litigation.

However, for entities that aren’t- that they don’t deal in the law that aren’t regularly in court – so anyone other than a law firm – it’s a huge cost.

And it’s an inner it requires a lot of resources and there’s a lot of energy and deciding how to respond to it whether to respond to it, etc.

So the practical answer is I recommend that all businesses make their website accessible and I really I should say all entities whether you’re a nonprofit whether you are a business whether or not you think you fall into one of these 12 categories, it’s better to err on the side of accessibility.

Because not only would you take care of any potential compliance issues but you would also make your website more accessible to a broader audience.

So does the American Disabilities Act apply to every website – no.

But for the reasons I’ve discussed in this video, I recommend every website make their website- every business, every organization, every entity make their website accessible.