This is post #16 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system (a few notes and disclaimers on that).
There are three basic theories on how the ADA applies to digital technology:
Theory One: The website itself is a public accommodation.
The most expansive view of how the ADA applies to digital technology. As a refresher, a public accommodation has a specific definition under the law which you can find at 42 U.S.C. § 12181 (7). The law provides a list of twelve specific public accommodations that are covered under Title III. That list includes things like “a restaurant”, “an inn, hotel” and so on. Many of those examples listed also include something like “or other [similar thing]” where similar thing is something like an “establishment serving food or drink” or a “place of exhibition or entertainment.”
The idea in this theory is that the web site, itself, fits the definition of a place of public accommodation. As an example, let’s say I can order food for delivery from a website. The site, itself, is an “establishment serving food or drink.” Given that, the site, itself, is a place of public accommodation under the ADA. The fact that it is not a physical place is irrelevant since it meets the definition of an “establishment service food or drink.” The idea here is that the definition of a public accommodation is flexible and can be viewed, reasonably, to include places that don’t have a physical place of business. In fact, the definition of place of public accommodation is noted as being flexible as part of the initial implementing regulations:
“In order to be a place of public accommodation, a facility must be operated by a private entity, its operations must affect commerce, and it must fall within one of these 12 categories. While the list of categories is exhaustive, the representative examples of facilities within each category are not. Within each category only a few examples are given. The category of social service center establishments would include not only the types of establishments listed, day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies, but also establishments such as substance abuse treatment centers, rape crisis centers, and halfway houses. As another example, the category of sales or rental establishments would include an innumerable array of facilities that would sweep far beyond the few examples given in the regulation. For example, other retail or wholesale establishments selling or renting items, such as bookstores, videotape rental stores, car rental establishment, pet stores, and jewelry stores would also be covered under this category, even though they are not specifically listed.” —1991 Preamble, Section 36.104 Definitions
So, it’s not a wild interpretation to say that, in some contexts, a website could be viewed as a public accommodation.
This view comes up the most in applying the ADA to purely digital places—almost always sites and apps. For example, a video streaming service would be argued to be a “place of exhibition or entertainment.” There’s isn’t a physical place of public accommodation for that business, but the digital assets are still argued to be places of public accommodation and must be meet the ADA requirements.
Jurisdictions and even specific courts within a single jurisdiction are split on this one. In at least one jurisdiction a court has found that a web site does not need to be tied to a physical location to be considered a part of a public accommodation. If you are defending a lawsuit, as part of your legal strategy this becomes a critical question. Again, an area where specialized counsel can be helpful.
Theory Two: The website is part of the goods and services provided by a place of public accommodation.
The consensus view, part one. In this view the website itself isn’t a public accommodation. There’s a physical place of business – the place of public accommodation – that meets one of the definitions under the ADA or implementing regulations. The website is covered, sure, but only to the extent that it relates to the goods and services provided by the underlying place of business. If you see this written about, you’ll see it written about as the “nexus” requirement. Basically, what it says is the web site is part of using the goods and services of the place of public accommodation. A couple of examples help:
- Before you go to the restaurant – the physical place of business – you’re going to check out the menu and hours of operation online. The online menu and store hours relate to the goods and services – tasty food and drink – provided at the physical place of business.
- Before you go to the doctor – the physical place of business – you’ve got to make your appointment online and fill out your first appointment forms. The online appointment system and forms relate to the goods and services provided by the doctor at the physical place of business.
And so on. In the world we live in most real-world experiences are, practically, tied into some online components that the average person uses as part of that real-world experience. So, the connection – or nexus as noted above – between those two things seems to make sense.
It’s also worth noting that this feels a little closer to the intent of how the law and regulations think about a place of public accommodation versus the public accommodation itself.
“It is the public accommodation, and not the place of public accommodation, that is subject to the regulation’s nondiscrimination requirements. Placing the obligation not to discriminate on the public accommodation, as defined in the rule, is consistent with section 302(a) of the ADA, which places the obligation not to discriminate on any person who owns, leases (or leases to), or operates a place of public accommodation.” 1991 Preamble – Section 36.104 Definitions
The idea there is that the business operating the physical location is subject to the nondiscrimination requirements not the place itself. That’s not too difficult to understand – just think of accusing a building of discrimination. Doesn’t make a lot of sense. Now think of accusing the person that owns or operates the business in the building of discrimination. Makes a lot more sense.
One minor note we’ll cover next to keep in mind, also from the Preamble, “Of course, a company that operates a place of public accommodation is subject to this part only in the operation of that place of public accommodation. ”
That’s a critical point that often gets lost in digital accessibility discussions and can serve as a method of drastically limiting the scope of ADA compliance claims as it pertains to digital assets.
Theory Three: The website is just an auxiliary aid or service.
In this theory we limit things down further and state that the (accessible) website is simply an auxiliary aid or service the covered entity is providing to support effective communication with people with disabilities. This view goes something like this:
- The physical place of business is covered as a place of public accommodation
- We provide goods and services there
- The way we ensure we can effectively communicate with people with disabilities is by providing accessible electronic and information technology
- We do that through are accessible website or mobile application
Conceptually, this is an active choice by the covered entity to say this is the medium we are using to support communication. The benefit of such an approach:
- It enables a materially narrowed view of the scope of the requirements. Instead of a whole series of requirements we can pretty quickly narrow it down to 42 U.S.C. § 12182 (b) (2) (A) (iii) and 28 CFR 36.303
- It provides a much greater level of flexibility in the implementation of the requirements. The auxiliary aids and services requirements are intended to be flexible. As a provider you have a relatively large amount of latitude in how and what types of auxiliary aids and services you provide.
- It can be tested in a straightforward fashion. We have a good regulatory definition of what is required for effective communication and we can test that for technology.
On the point of flexibility from the 1991 preamble:
“The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as the result is effective communication. For example, a restaurant would not be required to provide menus in Braille for patrons who are blind, if the waiters in the restaurant are made available to read the menu. Similarly, a clothing boutique would not be required to have brailled price tags if sales personnel provide price information orally upon request; and a bookstore would not be required to make available a sign language interpreter, because effective communication can be conducted by notepad.”
This theory is by far our favorite view of things since it allows us to actual construct a cohesive, defensible, and consistent view of how the technology works in the context of the law. It’s also the most limited and it’s not a perfect fit for the legal and regulatory record. It is, however, cited in many lawsuits as a claim and, as such, is worth keeping in mind.
So, which one is the right one?
Depends on the situation. In practice most of the lawsuits we have seen—and attorneys we discussed this with—generally apply parts of theory two and three to their interpretation. When it feels like the second theory applies—and the website clearly relates to the full and equal use of the goods—we view it under that portion of the ADA. In addition, we often see claims that the website doesn’t provide “effective communication.” In such cases we’d view the website as an auxiliary aid or service and claimed under that section of the law and regulations as well.
In practice, the big differences are the degree of the “reach” into the policies, practices, and procedures of the organization. If the website is just an auxiliary aid or service then, as long as it passes the test for effective communication, it’s valid. There isn’t a reach into how the covered entity chooses to provide that as long as it works. In contrast, if it’s part of the goods and services themselves things are trickier. Notably under reasonable modifications specific prohibitions (42 U.S.C. § 12182 (b) (2) (A) (ii)) covered entities are required to change the policies, practices and procedures to ensure that accessibility is maintained on an ongoing basis. That’s a far more invasive requirement that drastically expands the scope of what we need to look at to determine “compliance.”