helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into website accessibility in this week’s episode.

Title III of the Americans with Disabilities Act prohibits discrimination based on disability by “public accommodations.” The explosion of online commerce has forced the question: Does Title III apply to websites?

In a few jurisdictions, Title III applies only if the website has a nexus to an actual physical space. For instance, the California Court of Appeals recently issued a decision finding that the websites of “online-only” businesses are not places of public accommodation under the ADA or state law. It is a bit early to tell, but the decision is expected to substantially reduce the volume of website accessibility lawsuits filed in California. Organizations should keep in mind, however, that a plaintiff may still satisfy the “nexus” requirement when a website contains information about a brick-and-mortar location, such as store hours, or goods sold at a company’s store.

In a growing number of jurisdictions outside California, Title III still applies to any website offering a good or service to the public, regardless of whether there is a nexus to a physical location. According to the case law in these jurisdictions, an organization may still be considered a public accommodation under Title III, even without maintaining a brick-and-mortar location. But that does not mean an organization outside California is without any defenses.

The Second Circuit Court of Appeals—the federal appeals court for New York, Connecticut, and Vermont—recently affirmed the dismissal of several Title III cases for a failure to allege an injury to the plaintiff. According to the decision, the plaintiff could not pursue his claim without more specifically alleging an intent to actually use the defendant’s services and damages arising from the alleged inability to access the defendant’s digital content.

This recent Second Circuit decision suggests that organizations may be able to obtain dismissal of claims brought by serial website accessibility plaintiffs, which often rely upon threadbare, “cookie cutter” allegations that were copied and pasted from prior lawsuits that lack specific allegations about the defendant’s business and digital content.

In addition, depending upon the court in which a lawsuit is pending, some companies may be able to assert defenses of alleged website accessibility violations by establishing alternatives for disabled customers to access their goods or services, such as a toll-free, accessible hotline for disabled customers to use in lieu of inaccessible portions of the company website. Some state and local jurisdictions now also impose greater accessibility obligations than are required under Title III.

Despite the different rules within different jurisdictions, one thing is clear—website accessibility lawsuits are one of the new favorite toys for the plaintiffs’ bar. Complaints under Title III and analogous state and local laws are being filed in record numbers. Companies that sell goods or provide information about physical locations through their website should examine whether their websites are accessible by hearing-impaired, vision-impaired, and other disabled persons. They should also update their accessibility policies to account for website visitors.

Questions to consider in assessing whether your website is covered by Title III and equivalent state or local laws include the following:

  • Does your website enable a consumer to make purchases?
  • Does your website provide coupons, a member savings or loyalty program, a store locator, or other such online benefits or services? Does it link consumers to websites where they may purchase goods or services?
  • Does your website fit into one of the 12 categories of a “public accommodation” under Title III, or otherwise meet the definition of a “public accommodation” under state law?

If you answered yes to any of the questions above, you should consider whether your website is accessible.

To learn more about website accessibility, contact Karel Mazanec or Nick Reiter. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.