November 4, 2016
While financial institutions are typically aware of their responsibilities under the Americans with Disability Act (the “ADA” or the “Act”) as they relate to the maintenance of their physical office spaces and overall general corporate policies, recently some institutions have been recipients of demand letters alleging violations of the ADA based on a purportedly non-compliant website. Despite the absence of any current regulatory requirement that websites be ADA compliant, and notwithstanding the lack of any controlling standards or binding legal precedent as to what constitutes ADA compliance, unfortunately this issue has garnered significant attention from the plaintiff’s bar across the country.
Background on the ADA and Recent Regulatory Developments
The Act broadly protects the rights of individuals with disabilities as to employment, access to state and local government services, places of public accommodation, transportation, and other critical activities. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (private entities whose operations affect commerce and that fall into one of the identified covered categories) and requires newly constructed or altered places of public accommodation, as well as commercial facilities, to comply with the ADA Standards for Accessible Design. The U.S. Department of Justice (the “DOJ” or the “Department”) is responsible for promulgating regulations under the ADA, other than certain provisions dealing specifically with transportation. 
While the DOJ has adopted and then updated numerous regulations implementing the Act in the twenty-five years since its enactment, the regulations the Department has not adopted are creating uncertainty with respect to the ADA’s application to web pages. In 2010, the DOJ issued its Advanced Notice of Proposed Rulemaking on Web Accessibility entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations” (the “2010 ANPRM”). See 75 FR 43460 (July 26, 2010). The 2010 ANPRM announced that the Department was 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, and further sought information regarding what, if any, standards it should adopt for web accessibility. The Department also requested feedback on the anticipated costs of making websites accessible, and any available alternatives to mandating web accessibility. In 2015, after reviewing comments filed in response to the 2010 ANPRM, the DOJ announced that it intended to pursue separate rulemaking with respect to web accessibility under Title II and Title III,  and that any Title III proposal would be delayed as a result.
While Title III rulemaking is not imminent, this has not stopped the plaintiff’s bar from pressing ahead and issuing demand letters alleging non-compliant websites, in the hopes of extracting quick settlements from some financial institutions. Several lawsuits also have been filed in courts across the country under the theory that a website is a place of “public accommodation” and, therefore, must be ADA compliant.
What is the Standard for a Title III Violation under the ADA?
The Act provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."  To that end, any Title III plaintiff must show:
While case law is well established as to what constitutes a disability under the Act, the question of what constitutes a “public accommodation” is the subject of differing interpretations by the courts that have been presented with this issue.
Can a “Place of Public Accommodation” Be Something Other than a Physical Place?
It appears that the majority  of courts who have decided this issue have held that a public accommodation must include a physical place for a Title III claim to proceed. Some of these decisions, however, including an opinion from the Seventh Circuit in which the State of Indiana resides, predate the explosion of e-commerce and the DOJ’s expressed interest in web accessibility, as well as this most recent spate of demand letters and litigation focused on the accessibility of websites under the Act.
In some cases, courts have looked to whether there is a “nexus” between the website in question and a physical place of public accommodation. Plaintiff’s lawyers eager to extract a quick settlement from risk adverse corporate defendants often cite to a California district court decision on website accessibility under the ADA, National Federation of the Blind v. Target Corporation, 452 F. Supp. 2d 946 (N.D. Cal. 2006). In that case, the plaintiff alleged that the defendant’s failure to provide equal access to Target.com denied the blind “the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation.” Id. at 952. In rejecting the argument that the website itself was not a place of public accommodation and thus could not serve as the basis for a Title III claim, the California district court noted that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.” Id. at 953 (emphasis in original). Accordingly, the district court ruled that the plaintiff could indeed premise a Title III claim on the accessibility of Target’s website, even if the violation occurred “away from a ‘place’ of public accommodation.” Id.
In addition to the Target ruling, Plaintiff’s counsel also point to other federal district court decisions likeNational Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012), and National Federation of the Blind v. Scribd Inc., 2015 WL 1263336 (D. Vt. 2015). In both of those cases, the district courts ultimately concluded the Act did include websites within the scope of a public accommodation. Notably, the DOJ filed a Statement of Interest brief in Netflix supportive of the position that websites are within the scope of Title III protection.
While the Seventh Circuit has yet to consider litigation asserting ADA violations based on the accessibility of a company’s website, the court has twice touched on this issue in other contexts. In Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999), insureds sued their medical insurer alleging that the application of medical insurance policy caps on permissible medical care for AIDS patients violated the ADA. In the course of analyzing the scope of what constitutes a public accommodation under the ADA, the Seventh Circuit observed: “The core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space . . .) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.” Id. at 559 (emphasis added).
The Seventh Circuit reinforced this position in Morgan v. Joint Admin. Bd., Retirement Plan of Pillsbury Co., 268 F.3d 456 (7th Cir. 2001), an employment disability case brought under Title I of the ADA. In addressing one of the plaintiffs’ analogies to public accommodations, the Seventh Circuit refused to interpret “‘public accommodation’ literally, as denoting a physical site, such as a store or a hotel[.]” Id. at 459. In the court’s view, “[a]n insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store. . . . The site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.” Id.
The dicta contained in the foregoing decisions is concerning; however, the Seventh Circuit decided these cases more than fifteen years ago, and Indiana financial institutions have yet to see this language being used as a basis for lawsuits attacking the accessibility of websites under Title III of the ADA. The absence of litigation on this front, coupled with the DOJ’s delay in promulgating any mandatory regulations or guidelines concerning web accessibility under Title III of the Act, makes assessing your potential exposure from a demand letter challenging at best. While some recipients of demand letters have opted to pay a nominal settlement to minimize their exposure, others instead have devoted resources towards ensuring their websites are accessible to individuals with disabilities, thereby increasing the likelihood of ADA compliance even before any formal rulemaking by the DOJ. While no course of action comes without risk, or expense, until your financial institution is served with a legal complaint, it is difficult to know whether demand letters from Plaintiff’s counsel are anything more than a fishing expedition for a quick settlement that can be ignored.
Krieg DeVault is closely monitoring developments in this area of law, and is able to provide assistance in responding to demands from plaintiff’s counsel in the event your financial institution is targeted.
For further information, please contact Amy J. Adolay, Brett J. Ashton, or Libby Yin Goodknight
 42 U.S.C. § 12134; 42 U.S.C. §12186(b).
See Department of Justice – Fall 2015 Statement of Regulatory Priorities, available by clicking here.
 42 U.S.C. § 12182(a).
 See, e.g., Janick v. Redbox Automated Retail, LLC, 2014 WL 1920751 (C.D. Cal. 2014); Access Now, Inc. v. Southwest Airlines, Co., 227 F.2d 1312 (S.D. Fla. 2002); Ouellette v. Viacom, 2011 WL 1882780 (D. Mont. 2011); Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998); Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 1999).