The Americans with Disabilities Act (ADA) prohibits places of public accommodation, like restaurants, from discriminating against individuals with disabilities. Traditionally, this has meant that companies have had to make their physical locations, and the goods and services offered therein, accessible to individuals with disabilities. The steady shift in our economy from physical brick-and-mortar locations to online web-based commerce has led courts to expand the definition of places of public accommodation to include websites. This expanded definition has, in turn, led to a large number of private lawsuits against businesses alleging violations of the ADA for failure to maintain websites that are accessible to blind and visually impaired individuals. Over the past year, more than 240 of these lawsuits have been filed, most of them class actions against companies in the retail and hospitality industries, including a number of restaurants and other delivery food chains. Given the increasing number of website accessibility suits, restaurants and others in the consumer food delivery network that maintain a web presence must understand the requirements of the ADA and ensure that their websites are ADA compliant.
Restaurant and food delivery websites are especially vulnerable to lawsuits alleging violations of the ADA.
ADA: Title III of the ADA, which was enacted in 1990, prohibits discrimination against the disabled, including the blind and visually impaired, in places of public accommodation:
No 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.
42 U.S.C. § 12182(a). Title III of the ADA does not provide civil penalties for violations of the act but does permit private rights of action and allows individuals to bring enforcement actions and seek injunctive relief. 42 U.S.C. § 12188.
As originally enacted, the ADA did not expressly include websites as places of “public accommodation,” principally because the Internet was in its infancy at the time. Over the ensuing years, as the Internet has become ubiquitous and a seemingly unlimited number of goods and services, including food ordering and delivery, are available online, courts have interpreted places of “public accommodation” to include websites. The interpretations have varied among courts, resulting in a circuit split regarding whether a website must have a nexus with a “physical place of public accommodation,” like a restaurant, to fall within the scope of the ADA.
According to the U.S. Court of Appeals for the Seventh Circuit, a nexus is not required, and websites without connections to physical commercial entities are nevertheless “places of public accommodation” for purposes of the ADA. As Chief Judge Richard Posner held in Morgan v. Joint Administration Board, Retirement Plan of the Pillsbury Co. and American Federation of Grain Millers, AFL-CIOCLC: “An 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.” 268 F.3d 456, 459 (7th Cir. 2001).
By contrast, the Ninth Circuit has adopted a more restrictive definition of “place of public accommodation,” requiring a nexus between the website and the service of a physical “place of public accommodation” like a restaurant. Even employing the more restrictive definition, however, a website inaccessible to visually impaired individuals may still violate the ADA if the website provides unequal access to the “services” that may be available at a physical location.
Restaurant/Food Delivery Websites
Restaurant and food delivery websites are especially vulnerable to lawsuits alleging violations of the ADA regardless of which definition is applied by virtue of the services they offer and their necessary connection to a brick-and-mortar location. For example, a restaurant website allowing a customer to order food delivery could be in violation of the ADA if the site is inaccessible to the blind or visually impaired. In that situation, the website could be in violation of the ADA because the goods or services offered on the website are inaccessible and because the “nexus” between the challenged service and the physical place of public accommodation would make the website subject to the ADA. Even websites that offer relatively simple services like online reservations could be in violation of the ADA if inaccessible to blind and visually impaired individuals.
In 2016 alone, lawsuits have been filed against a number of restaurants, including, among others, Capital Grille, Domino’s Pizza, Potbelly Sandwich Works, Panera Bread and Olive Garden, alleging that some or all of the companies’ websites are inaccessible to the blind. Smaller restaurants and retailers have also been targeted with suits against Benjamin Steakhouse, Peter Lugers and Lobel’s of New York, filed in the last few months.
These suits expose companies to damages, potentially costly litigation and injunctive actions. Accordingly, it is important for restaurants and retailers of all sizes to be cognizant of the need for ADA compliance.
ADA Compliance Tips
- Build it Right: Blind and visually impaired individuals typically use specialized software, including screen reader technology, that reads website content aloud allowing users to access and navigate websites. Private lawsuits and enforcement actions undertaken by the Department of Justice have highlighted that not all publicly available websites are ADA compliant because they, among other things, fail to incorporate screen reader technology. Ensuring that a website is designed and constructed so that it is compatible with screen reader technology is the first step in ensuring compliance with the ADA. Building the website right from the beginning avoids potential accessibility issues and prevents the need to redesign the website following a potentially costly lawsuit.
- Audit New Features: Even websites that may have been designed initially to be compatible with screen reader software may become inaccessible when new features are added or the website is updated. In the case of a recent suit against Domino’s, the addition of a buy one get one free feature to its online ordering system rendered Domino’s otherwise compliant website inaccessible to blind and visually impaired users. This lapse was sufficient to prompt a class action lawsuit alleging violations of the ADA. Ensuring that new features are designed to be compatible with screen reader software and that users can seamlessly navigate between old and new features on the website without issue will minimize the risks that updates can present to otherwise compliant websites.
- Is this Necessary?: While it is difficult to conceive of running any business this day and age without a web presence, the type of website a company maintains may limit its risk under the ADA. Specifically, websites that are strictly informational in nature are unlikely to violate the ADA because they do not offer goods or services. For small businesses, the question of whether to maintain a website that simply provides information, or one that offers additional services, like online ordering, but could also create liability under the ADA is important. Because the Internet does not discern between big and small businesses, everyone is at risk under the ADA. Choosing a website design less likely to violate the ADA may be a prudent method for smaller businesses to minimize risk.
Lawsuits Likely to Continue
The large number of ADA website accessibility lawsuits recently filed illustrates the potential risks faced by restaurants and retail establishments offering “a place of public accommodation” online. The steady source of attorneys’ fees these suits provide to plaintiffs’ counsel, and the relative ease with which allegedly offending sites can be identified, make it likely that these actions will continue to be filed. As large companies bring their websites into compliance, either voluntarily or following legal action, plaintiffs may begin to focus on smaller businesses and online retailers. Accordingly, it is important to understand the need for ADA compliance and the pitfalls posed by non-compliance in an effort to limit the risk of potential litigation.
The authors are from the firm of Sutherland Asbill & Brennan LLP.