Website AccessibilityEastern District of New York Holds a Website By Itself is Not Place of Public Accommodation

Eastern District of New York Holds a Website By Itself is Not Place of Public Accommodation

Website class actions alleging violations of the Americans with Disabilities Act (“ADA”) continue to dominate the court systems. These lawsuits are indiscriminate involving businesses of all sizes across a myriad of industries. Commonly, these lawsuits involve a plaintiff who suffers from a disability and attempted to access a business’s website, alleging that the website itself should be considered a place of public accommodation, but their disability hindered their enjoyment of the business’s services. Nevertheless, a court in the Eastern District of New York has unequivocally concluded that a website is not a “place of public accommodation” within the meaning of Title III of the ADA.

Winegard v. Newsday LLC

On July 31, 2019, Plaintiff Jay Winegard, a legally deaf individual residing in Queens, New York, filed an action in the Eastern District of New York against the news service provider Newsday. Winegard alleged that Newsday violated the Americans with Disabilities Act, the New York State Human Rights law, and the New York State Civil Rights Law, and the New York City Human Rights Law in failing to provide closed captioning on two of the videos it hosted on its website.

On May 1, 2020, Newsday filed a Motion to Dismiss, arguing, in relevant part, that Newsday is not a place of public accommodation within the meaning of Title III of the ADA.

On August 16, 2021, while initially observing that the Second Circuit has not squarely resolved whether a website itself is a place of public accommodation, the Eastern District of New York concluded that “the ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations from the definition of” places of public accommodation. In reaching its conclusion, the court relied heavily upon the text of the ADA, noting that the ADA’s definition of places of public accommodation were overwhelmingly comprised of physical locations.

Echoing the recent Eleventh Circuit holding in Gil v. Winn-Dixie, the court further called upon Congress to clarify whether the places of public accommodation include websites and further remarked that in the thirty-one years since the passage of the ADA, Congress has failed to add non-physical places to the definition of places of public accommodation.

Finally, the court in Winegard concluded that previous Second Circuit reliance on Pallozzi v. Allstate Life Insurance Co. is misplaced, as that matter dealt with the enjoyment of insurance services which still had to procured at a physical location.

What does this mean going forward?

Whereas the Court’s decision in Winegard may not initially upend all website-based ADA claims in the Second Circuit, it is yet another example of the eroding argument that websites are automatically places of public accommodation. To that end, it is important that companies are proactive and prioritize accessibility to put themselves into a legally defensible position.

At Beckage, we have a team of highly skilled attorneys and technologists who are uniquely situated to help clients navigate website accessibility and work towards national and international standards with other privacy and security laws. Beckage works with clients at all stages of accessibility analysis and is here to help make your company ADA compliant and help ensure your company has the right tools in place to mitigate risk.

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WebsiteWebsite Accessibility Under the ADA: What You Need to Know

Website Accessibility Under the ADA: What You Need to Know

Many of us are familiar with the Americans with Disabilities Act, otherwise known as the ADA. It is a landmark civil rights legislation that was signed into law by President George H.W. Bush in 1990. It works to guarantee that individuals with disabilities have equal opportunities to participate in mainstream American life, from finding employment opportunities to shopping at the mall or entering a public library.  But “mainstream” life has changed a lot over the past 30 years, especially with the tremendous growth we have seen with the advent of the internet. More and more companies with or without brick and mortar stores have some type of online presence. As such, the past few years there has been a tremendous amount of litigation surrounding how the ADA should be applied to websites.  

Current Status of the ADA

When the ADA was first enacted, Congress could not have anticipated just how far the internet would reach into everyday life. As a result, the ADA focuses on accessibility and discrimination issues that would happen in person—for example, standards for accessibility for brick-and-mortar business locations and employment setting. The ADA does not specifically provide guidance regarding the accessibility standards applicable to internet or online businesses nor does it expressly exclude online businesses either.  

Title III of the ADA requires that every owner, lessor, or operator of a “place of public accommodation” provide equal access to users who meet ADA standards for disability. Over more recent years, the argument arose that this concept applied to websites, prompting a wave of litigation by plaintiff’s claiming that accessibility barriers experienced on a website violated the ADA because it denied them full access to and equal enjoyment of the goods, services, and accommodations of the website. But with no formal guidelines or laws in place outlining what online ADA compliance actually means for online businesses (with or without a connection to a brick-and-mortar business), it has been largely left up to the courts to decide what compliance looks like.  

As we reported at the end of last year, the United States Supreme Court denied a petition filed by the pizza conglomerate Domino’s, sending a relatively clear statement that Title III of the ADA does in fact apply to websites. But the Supreme Court’s denial of cert still leaves businesses hoping for actual guidelines in limbo, waiting for either another case to reach the Supreme Court or the Department of Justice to issue guidance in this area.

Recommended Steps for Addressing Website Accessibility  

In the meantime, Beckage has proactively monitored this area of the law over the past few years and recommends clients take intentional and protective measures to address website accessibility sooner rather than later. As either part of litigation defense strategy or proactive website remediation measures, we generally recommend implementing a comprehensive, phased approach to website accessibility, including the following measures:  

Working with Beckage or a trusted third-party vendor that we together vet and retain to perform an independent website-accessibility audit for conformance with the Web Content Accessibility Guidelines (WCAG 2.1), the prevailing set of guidelines that set forth website accessibility standards.  

Implementing a forward-facing website accessibility notice that is prominently and directly linked from the website home page that provides individuals with disabilities who are experiencing technical difficulties the ability to request assistance. Those staffing the phone line and receiving e-mails regarding this should be knowledgeable about the statement and be trained on how to help users that are experiencing technical difficulties navigating the website.

Deploying an internal website accessibility policy that guides the organization’s decision making and processes and procedures for designing, developing, and procuring accessible content on the website. Most websites are regularly updated and modified and accordingly there should be procedures in place as part of this internal policy for regularly reviewing the website for new accessibility barriers.  

We also recommend regularly testing your website with assistive technology used by the disability community to access your content such as the JAWS screen reader. This process can provide valuable intel on potential and unforeseen barriers that may occur to users.  

Even without specific guidelines or a clear understanding of what compliance looks like, there are several low-cost, high impact steps companies can take to address website accessibility.  We recommend clients work on website accessibility alongside their larger public-facing disclosure compliance work, such as regularly updating their Website Privacy Policy and Terms of Use to comply with the evolving paradigm of privacy legislation and regulations such as the California Consumer Protection Act (CCPA) and GDPR.  While the legal standards of website accessibility are still murky, the technology to support accessibility online is only getting stronger. Beckage’s Accessibility Team, made up of web developers and a former web design business owner, is here to help you navigate ADA website compliance and make your online presence more welcoming and accessible to everyone. From litigation defense to proactive website remediation, our experienced team is uniquely positioned to partner with your business and assist with your ADA compliance efforts.  

*Attorney Advertising. Prior results do not guarantee future outcomes.

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