Disability, History, and Law, Part 2: The ADA, the Internet, and the Next 30 Years

lA service dog at WSBA

Historically, most accessibility lawsuits concern inaccessible physical public accommodations. In recent years, the Americans With Disabilities Act (ADA)—which was passed 30 years ago this week—has brought the fight for civil rights to the internet.

The number of website accessibility lawsuits has increased from 814 lawsuits filed in federal court in 2017, to about 2250 in both 2018 and 2019. Plaintiffs with disabilities bring suits because they cannot use websites when the sites are not coded to work with assistive technologies like screen-readers, voice dictation, and captioning for pictures and videos.

One issue raised by the application of the ADA to websites is whether the internet is a “place of public accommodation.” A Florida court tried (and failed) to limit “places” strictly to physical, brick-and-mortar locations. In dicta, Judge Posner, on the 7th Circuit, has interpreted “places” to include facilities “whether in physical space or in electronic space.” A Goldilocks solution, in the 3rd, 6th, 9th, and 11th Circuit Courts of Appeals, requires a “nexus” between websites and physical spaces, and this interpretation has largely gained acceptance. This interpretation is further reinforced by the Supreme Court’s denial of certiorari in Domino’s Pizza LLC v. Robles (2019).

A functional approach to determine when the ADA applies—asking whether a public accommodation for a given statutory category of service has provided meaningful access—might prove more effective than torturing the definition of place. A patchwork of cases, including Title II cases and Department of Justice settlements, have provided a standard that websites, mobile apps, and web services must provide meaningful access to persons with disabilities so long as they provide goods and services within one of the 12 categories of public accommodations listed in the ADA contained in 42 U.S.C. §12181(7). Subsection 42 U.S.C. §12181(7) includes motion picture houses, office of an accountant or lawyer, and places of education among other entities (i.e., Netflix, TurboTax, LegalZoom, and online universities). It should not be surprising that people with disabilities want access to the same online services as everyone else.

Tying suits to meaningful access to the services provided could be a way around difficult decisions, online-only businesses, and the absence of agency guidelines. In 2010, the Department of Justice (DOJ) issued advance notice of proposed rulemaking to establish accessibility standards for website compliance. The DOJ seemed to be moving toward accepting Web Content Accessibility Guidelines (WCAG) 2.0 as the standard for meaningful accessibility. However, under the Trump administration, the DOJ placed that rulemaking on the 2017 Inactive Actions list with a statement that the DOJ will “continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”

In the near future, rulemaking for the ADA is uncertain. Of course, my wish is that the ADA endures another 30 years—adapting to provide access to public accommodations for people with disabilities—helping the bend toward equality and justice. Alas, if wishes were horses, beggars (and profoundly paralyzed quadriplegics) would ride.