Considering when private entities must provide accessibility to the public may evoke expectations around whether building owners must install ramps or elevators to permit those who use wheelchairs to enter the building, or for shopping centers to include handicap parking spaces, or for public transportation to allow guide dogs to ride trains and buses. Some people might not think about accessibility in our digital lives.  However, there is an increasing awareness that websites and apps must be, under certain circumstances, accessible to those who are deaf or blind.  Testing the boundaries of the laws that require companies to provide digital accessibility is also becoming a much more common subject of litigation.

Accessibility is Required When There is a Nexus to a Public Accommodation

Generally, title III of the Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of a disability in the enjoyment of services of public accommodations. A number of courts have held that a website or app can be a public accommodation.  In those jurisdictions, the website or app owner will be much more likely to have to make the digital content accessible.

A slightly greater number of courts have held that a website or mobile application itself is not a public accommodation.  Instead, those courts have typically determined that a place of public accommodation under the ADA is limited to an actual physical place. However, even then, a website or mobile application that has a nexus to a place of public accommodation (such as a pizza parlor or grocery store) is likely required to comply with accessibility standards. That is because not only does the ADA cover the actual, physical places where goods or services are open to the public, but the places where the public gets those goods or services.

Moreover, the person who “owns, leases, or operates” the place of public accommodation is responsible for ensuring that those places comply with the ADA. That means that certain website and app developers who developed content indirectly connected to a place of public accommodation (think of an app to watch a sporting event) but do not own, lease, or operate that place may be able to argue that their content need not be accessible.

Accessibility is Required in Certain Communications-Related Technology

In addition to the ADA, website and app creators also need to assess whether the Twenty-First Century Communications and Video Accessibility Act (“CVAA”) mandates accessibility standards. Generally, creators of applications that have communications features (e.g., VoIP, video conferencing, or electronic messaging) will need to make those communications services accessible.  Many video games, for example, include in-game chat features which are covered by the CVAA.

The CVAA also implements requirements for video programming. For example, video programming that is closed captioned on TV when distributed must also be so on when distributed on the internet.  Those websites that are redistributing this digital content will need to consider whether the CVAA applies to them.

Website and app owners assessing whether they need to include accessibility will need to assess whether the CVAA applies to them and, if so, how to comply.

Some States Have Laws that May Require Accessibility

In addition to the federal laws, there are state laws that impact when and whether private websites and apps must be accessible. Many states’ laws are more protective of the public than the federal law.  In California, for example, intentional discrimination against persons who are blind or deaf that denies those persons free and equal access to services is actionable, regardless of whether a person can state a claim under the ADA.

Best Practices

  • If you are not certain whether federal and state law cover your website or app, get a legal opinion on what laws, if any, apply to you and what is required so that you can understand your risk.
  • Use your legal opinion to consider your accessibility obligations and options early in the design process, so that you can plan for accessibility features and make cost-effective decisions as you move forward.
  • Clearly document cost-saving decisions as such or the limitations of accessibility features when deciding not to move forward with a feature.
  • Have your lawyer draft terms of use that include a class action waiver and consent to arbitration. Then, work with your lawyer to make sure you are obtaining enforceable, affirmative consent to your terms of use. If done correctly, your terms of use may save you from an expensive class action lawsuit.
  • Regardless of what the laws require, consider your brand and your target audience – will you lose your audience if you do not make your website or app accessible?