By: Tim Singhel
A business that wants to take greater advantage of the online marketplace by expanding its web presence by offering a customer portal for its goods and services has a lot to consider. Issues such as how to keep customer data safe from hackers and the security of the company’s own intellectual property can mean the difference between a business’s overall success or failure. However, those are not the only considerations. One of the all too often overlooked ones is whether the customer portal needs to meet the public accommodation requirements of Title III of the Americans With Disabilities Act (ADA).
Many people know that Title III of the ADA requires that the covered facilities (e.g. office buildings, factories, and warehouses) and businesses in 12 categories that are generally open to the public (e.g. places of lodging, restaurants, and bars, theaters, retail businesses, and services businesses) are required to meet ADA requirements when they are newly constructed or altered. However, many people do not know that the same rules of access are increasingly being applied to customer portals and websites for those same businesses.
Although the issue has been around for more than 10 years, it is getting new-found attention as more and more federal courts are becoming receptive to the notion that even small businesses in the category must meet the ADA requirements, at least under certain circumstances. The case that started it all in 2006 was brought by the National Federation of the Blind against Target. The claim, in short, was that visually impaired people could not effectively navigate around Target’s website nor purchase Target goods online without assistance. In other words, Target’s virtual marketplace was not accessible. When the case was over in 2009, Target had paid almost $10 million just in settlement costs and attorneys fees, let alone the cost of mounting its own defense.
Ever since the NFB/Target case, the debate has been raging about whether and if so, to what extent, websites of companies in the 12 covered categories fall within the ADA Title III requirements. Courts are still split on whether the ADA applies only to physical spaces or can apply to virtual ones as well. However, even those courts that have held that a website is not always covered still apply the ADA where the website is heavily integrated with physical store locations (e.g. where goods can be ordered online and shipped to you at home). Further, the same rules apply regardless of the size of the business. You do not have to be Target to be a target. A recent case from this year moves that bar even further.
In a case brought by a visually impaired customer against Winn-Dixie who claimed that the website was largely incompatible with software for the visually impaired, the ADA was held to apply even though Winn-Dixie does not sell food directly from its website but does allow customers to access digital coupons that are then linked to their loyalty card and also manage prescription orders. That was enough for the court to decide that the website is “heavily integrated” into the company’s overall operations. That decision may well set the trend, meaning that now, pretty much any customer portal-type website of a company that falls within the 12 categories can be covered if it dovetails with the interface the customer has with the company at its physical location(s) (e.g. loyalty benefits, coupons, online ordering to be picked up in person, etc.).
What this means going forward is that businesses in the 12 covered categories that have a website (and if they do not, that is an entirely different problem) should consult with legal counsel to help ensure that their websites are compliant if they are covered. Title III claims are becoming increasingly popular with crafty plaintiff’s attorneys who have an easy path to finding a customer with standing to sue and then create a class action out of it. Further, and perhaps more importantly, why wait for the lawsuit to comply, or even comply only because of the potential threat of a lawsuit? There is an even stronger intrinsic value in ensuring that your website is accessible to all of your customers. Isn’t that why you are in business in the first place?
Tim Singhel focuses on outside general counsel work, corporate/business, and labor & employment law in the Nashville office.
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