Websites as places of public accommodation

Clients frequently ask goodcounsel to draft online Terms of Use and Privacy Policies. What they often fail to consider is whether the Americans with Disabilities Act applies to their websites and mobile apps. Yes, you read that correctly: the Americans with Disabilities Act. Whether the ADA applies depends on the state(s) the company operates in, the kind of goods or services the company offers, and how and to whom the company provides such goods or services.

Title III of the ADA  prohibits discrimination on the basis of disability affecting the full and equal enjoyment of goods and services in a place of public accommodation. Examples of places of public accommodations are restaurants, retail stores, private schools, and doctors’ offices – with the growth of the Internet, some courts have interpreted that term to include websites as well.

The Americans with Disabilities Act

Appellate courts in the Sixth, Ninth, and Eleventh Circuits have indicated that there must be a connection between the goods or services offered by a company and a physical place of public accommodation in order for a company’s website to also constitute a place of public accommodation. By contrast, courts in the First, Second, and Seventh Circuits have found that a website, by itself, can be a place of public accommodation. Ideally Congress will clarify this issue, but that seems unlikely in the near future. For now, companies may look to the statements of the Department of Justice, which has the enforcement mandate for the ADA. The DOJ currently takes the position that companies that own or operate physical places of public accommodation must ensure their publicly accessible websites are compliant with Title III.

Federal courts split

Encouraged by the ADA’s provisions that allow prevailing litigants to recover attorneys’ fees, plaintiffs’ lawyers are exploiting uncertainty in this area and bringing legal actions based on alleged ADA website compliance violations. Defending against these claims is costly.

Enter the plaintiffs’ lawyers

Given the murky situation, consider reaching out to capable counsel for advice on how to mitigate risk, including by enhancing your online policies and modifying the design and functionality of your website.

Categorised as: ADA Compliance, Legal Issues

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