Are there any court cases on web accessibility and the obligations of businesses under Sections 504, 508 or ADA?

Updated January 11th, 2013

To date, only a few cases specifically related to web accessibility have gone to court, but it is only a matter of time before more follow. Although it is always hard to know with certainty what the results might be in a particular court case, it is well established that when a court is asked to decide a new issue, for example, obligations to provide accessible websites, it will look to earlier cases that have raised similar issues.

DISCLAIMER

In March 2010, the Department of Justice provided advance notice that it is considering revising the regulations implementing titles II and III of the ADA to establish specific requirements for State and local governments and public accommodations to make their websites accessible to individuals with disabilities. Section 508 is also undergoing a revision process and has published Draft Information and Communication Technology (ICT) Standards and Guidelines which are expected to supercede Section 508 .

The information provided below applies to current regulations as of March 2011 and is subject to change at any time, due to changing legislation.

Section 504 and Section 508 of the Rehabilitation Act of 1973

Section 504 requires any entity receiving federal financial assistance to ensure program accessibility, while Section 508 guarantees access to electronic and information technology procured by Federal agencies.

A number of states have now incorporated all or part of the Section 508 standards into state legislation, meaning that many state agencies and state-funded entities now fall under the Section 508 standards and requirements.

Web-based information is often integral to programs of federally (or state) funded entities - and may often be the programs themselves.

Private enterprises may also be covered by Sections 504 and 508 if they provide services to covered entities, as can be seen by the 2008 settlement reached with SAP, a software provider, who provided services to the state of Arkanses. The National Federation of the Blind of Arkansas and two blind state employees have agreed to a settlement among themselves, the state of Arkansas, and SAP. The agreement resolves a lawsuit brought by blind state employees in 2001 because the blind could not access the Arkansas Administrative Statewide Information System (AASIS). The state, in turn, brought suit against SAP, which had substantially designed AASIS. Under the agreement, SAP will upgrade AASIS to include accessibility features that will allow blind state employees using text-to-speech screen access technology to perform employment functions using AASIS.

Commercial web sites are not covered directly by Sections 504 or 508, unless they are providing programs or services to covered entities. A private entity wishing to provide such services would be more likely to be considered for selection as a provider if it can show that its services are in compliance with Sections 504 or 508.

Americans with Disabilities Act

A few court cases have received prominence in the past few years, with very different results, showing how, over time, the Internet has become more mainstream and that commercial websites could be considered to be "public spaces", which would be covered under Title III of the ADA.

Recently, the National Association of the Deaf sued Netflix, seeking to require it to add captions to its streaming online videos. Netflix argued that its site is not a “place of public accommodation”, but a federal district court in Massachusetts denied the move to dismiss, holding that the ADA does apply to website-only businesses. Netflix has agreed to work with plaintiffs “to devise a reasonable and workable way to achieve 100% captioning” in netflix’s on-demand streaming content within two years.

However, a subsequent lawsuit brought by an individual against Netflix, Cullen v. Netflix was not as successful. The U.S. District Court in California reached the opposite conclusion, finding that an "actual physical place" was a requirement to be considered a place of public accommodation pursuant to the ADA. Accordingly, the Cullen court held that a video streaming website was not subject to the ADA because it was not an actual physical place.

This case is considered to be precedent-setting as significant numbers of businesses and services are becoming primarily Internet based, without a physical presence.

In September of 2006, a judge ruled that a lawsuit brought by National Federation of the Blind (NFB) against Target could proceed. The court found that to the extent that the plaintiffs alleged that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs have a claim. This only meant that the court case could proceed and no legal judgment was passed.

The case was settled out of court on August 27, 2008. Highlights of the settlement include:

  • Target does not admit liability that target.com is in any way inaccessible or has violated the Americans with Disability Act.
  • Target will pay up to a total of $6 million in damages to qualified settlement class members over a 3 year period.
  • Target will ensure that the target.com website meets the Target Assistive Technology Guidelines and that blind guests using screen-reader software may acquire the same information and engage in the same transactions as are available to sighted guests with substantially equivalent ease of use.
  • National Federation of the Blind will engage in ongoing monitoring of target.com for the duration of the agreement, to ensure accessibility of target.com.

The full settlement is available at www.nfbtargetlawsuit.com.

In an October 2002 court ruling, Robert Gumson, who is blind, lost a lawsuit he filed against Southwest.com to compel the airline to redesign their website, which he considered inaccessible. Gumson acknowledged it was possible for him to buy tickets on Southwest's website, but he argued it was "extremely difficult" due to his disability.

Gumson, who uses a screen reader on his computer to translate website text into words using a voice synthesizer, asked the judge to order Southwest to provide additional text that could serve as an alternative to the graphics used for the website's navigation buttons (screen readers can't read graphic images) and also to redesign the site's navigation bar to make it easier to understand.

The judge ruled against Gumson and in favor of Southwest Airlines based on what the judge described as ambiguity in existing ADA criteria for "public spaces" and the question of whether that criteria should include the Internet.

Similar lawsuits have been filed against AOL, American Airlines, Barnes and Noble and Claire Stores to name just a few. Most of these cases were settled out of court, with no legal judgment having been passed.

General

In the case of web accessibility, a court will look to the legal standards established and defenses allowed under §504 and the ADA for similar obligations, such as the duty to provide auxiliary aids (for example, sign language interpreters, readers, or hardware or software needed by people with disabilities to access information technology).

The legal obligation in the case of websites is to provide equal access to the information contained on the websites and to "effectively communicate" that information to the user. However, like other duties under §504 and ADA, it would seem likely that a commercial entity will not be required to meet this obligation if the entity could successfully argue that doing so results in a fundamental alteration to the nature of the business and/or creates an "undue burden." "Undue burden" has been interpreted in many court decisions as actions that require substantial effort or cost.

Businesses found to be discriminating against individuals with disabilities because the information contained or services offered on their websites was inaccessible under the ADA could be required to pay for redesigning websites as well as incurring the costs of "effectively communicating" website content to individuals.

It is much less expensive to design and implement an accessible website from the beginning than to retool it later. Designing accessible websites can be thought of as an insurance policy that protects against future costs incurred by not adequately meeting the needs of customers, employees and the community.