This is post #17 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).
In determining what portion of the system is covered we start off assuming the entire system is covered and then we remove things one at a time that don’t meet any of the requirements of the system. In our view this is the most conservative route—assuming something is covered unless we can prove it isn’t. You could, of course, invert that approach and only assume things are covered if explicitly shown to be covered. In practice, though, our experience is it’s easier to rule out discrete sections of a website or technology than rule them in.
The highest level requirement we start with comes from the General Rule (42 U.S.C. § 12182 (a)). As a refresher that says:
“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.”
The thing to notice there is that the prohibition only applies to the full and equal enjoyment of the goods, services, facilities and the like of any place of public accommodation. Anything that does not relate to that, and is part of the website, can reasonably be viewed as out of scope. So, what does that mean? Well, the “Investor Relations” part of your website probably doesn’t relate to the goods and services provided at your places of public accommodation—real or virtual—so that’s out of scope. The “Jobs” section of your website is covered under the ADA, but it’s covered under Title I, so for Title III processes you can remove it. And so on for sections not reasonably tied to the goods and services of the public accommodation.
Think about the really high-level areas of the average website. You’ll get a list that probably looks something like this:
- Home Page – The home page of the organization that links to the various other parts and highlights content of interest.
- Product or Services – An overview of the products and services provided by the organization.
- Contact Us / Chat – Phone numbers, e-mail addresses, case submission forms and live chat features of the website.
- My Account – Login screens, account settings, order status, billing information, email preferences, and CAPTCHA screeners.
- Shop – Ability to shop online for goods and services. If these can be picked up in the store, they are likely related. If they are shipped directly to the user’s home and not available in physical stores this may be a more complicated analysis.
- Training – Training on the products and services provided by the organization.
- Support and Documentation – Online support and documentation for the products and services of the organization.
- Locations – Specific locations for stores, venues, customer support or other services.
- Meet the Team – An overview of the executive team of the organization.
- Corporate History – An overview of the corporate history of the organization.
- Privacy, Security, Accessibility – The relevant privacy, security and accessibility policies of the website
- Events – Live events the organization is sponsoring
- Customers and Testimonials – Customer list and testimonials
- Social Media – The social media end points of the organization
- Blog – The organizations blog
- Press Releases – Official press releases and content
- Investor Relations – Section of the site related to investor relations
- Jobs – Section of the site for searching and providing jobs
Some of those areas clearly relate to the goods and services provided in the physical location. Some of those areas are loosely related to the goods and services provided in the physical location. Some of those areas are unrelated. What we want to do is go through the high-level content areas and roughly classify them into those three buckets. Typically, we can then sort individual pages of the site into those classifications and determine which ones must be made accessible, which are optional or judgement calls, and which are likely to be out of scope.
The “Public” in Public Accommodation
A subtle requirement in all of this is also that the ADA, broadly, only applies to the public places in the place of public accommodation. As an example, there isn’t (generally) a requirement to make the kitchen of a restaurant accessible as the kitchen is not part of the public area of the restaurant. Instead, the requirements apply to the public portion of the business—the “public” in “public accommodation.”
Consistent with that logic would be the idea the administrative portions of a website or technology system would broadly be out of scope for ADA compliance requirements. If a portion of the website wasn’t available to the general public or registered users of the site and didn’t relate directly to the good and services provided it would be reasonable to consider it out of scope.
Once we rule out portions of the site that aren’t directly related to the goods and services provided by the covered place of public accommodation, we move on to the question of prioritization. This issue is broadly a business judgement decision in terms of the relationship and criticality of the content or functionality under question as it relates to the covered goods and services. In other words, we’d prioritize based on how closely the thing in question relates to the covered goods and services at the place of public accommodation. If it’s closely related, we’d give it a relatively high priority. If it’s loosely related, we’d give it a low priority. As a secondary pass we’d then look at the relative traffic to the section of the site. Traffic is basically the way that users have indicated—as a group—what sections of the site are more and less important. High traffic site areas are generally more important, and low traffic site areas are generally less important. So, we can reasonably focus on the high traffic areas.
One exception to the general approach of traffic priority is low traffic areas of the site that are on core workflow paths through the site. If a page doesn’t get a lot of traffic but it’s part of the user flow related to the goods and services, even if it’s low traffic we’d need to address it as it’s on a core workflow. Login pages tend to be good examples of this that don’t (relatively) get a lot of traffic but they are core gateways on a lot of user flows in the average site. So even though they are low traffic they warrant early, focused attention.
Putting It Together
Based on the above we’d then take all the chunks of the site and prioritize them using a model like this:
|Home Page||The home page of the organization that links to the various other parts and highlights content of interest.||Directly||Yes||High|
|Product or Services||An overview of the products and services provided by the organization.||Directly||Yes||High|
|Contact Us / Chat||Phone numbers, e-mail addresses, case submission forms and live chat features of the website.||Directly||Yes||High|
|My Account||Login screens, account settings, email preferences, and CAPTCHA screeners.||Directly||Yes||High|
|Shop||Ability to shop online for goods and services. If these can be picked up in the store, they are likely to be related. If they are shipped directly to the persons home this may be a more complicated analysis.||Directly||Yes||High|
|Training||Training on the products and services provided by the organization.||Directly||Yes||High|
|Support and Documentation||Online support and documentation for the products and services of the organization.||Directly||Yes||High|
|Locations||Specific locations for stores, products or services.||Directly||Yes||High|
|Privacy, Security, Accessibility||The relevant privacy, security and accessibility policies of the website||Directly||Yes||High|
|Meet the Team||An overview of the executive team of the organization.||Loosely||Yes||Low|
|Corporate History||An overview of the corporate history of the organization.||Loosely||Yes||Low|
|Events||Live events the organization is sponsoring||Loosely||Yes||Low|
|Customers and Testimonials||Customer list and testimonials||Loosely||Yes||Low|
|Social Media||The social media end points of the organization||Loosely||Yes||Low|
|Blog||The organizations blog||Loosely||Yes||Low|
|Press Releases||Official press releases and content||Loosely||Yes||Low|
|Investor Relations||Section of the site related to investor relations||No||Yes||NA|
|Jobs||Section of the site for searching and providing jobs||No||Yes||NA|
|Partner Portal||Section of the site used by business resellers for our products||No||No||NA|
Where the secondary columns have these meanings:
- Related – Determines if it’s directly, loosely or not related to the goods and services of the location.
- Publicly Available – Determines if it’s a function that’s available to the general public.
- Priority – Determines the relative priority of working on the site section. In this example we have just used “High” and “Low.” In practice with customers, we rate this on a scale of one to ten based on relative traffic to that section of the site and whether or not the function is on a critical path in the site.
What’s “Loosely” Related?
For many of the site items we may not have a direction relationship with the goods and services provided at that place of public accommodation but there is some relationship. For the sake of simplicity, we are bucketing these into a “loosely” related bucket. We typically counsel handling these on a case-by-case basis. For example, the relationship of press releases and blogs to the covered good and services is wholly dependent on the topic of each press release or blog. If the press release is related to the covered goods and services, we’d view it as being covered under the relevant requirements of the ADA. If it’s not related, it’s not covered.
As an example, let’s think about some press releases. If a press release details the COVID-19 sanitation policies at a physical store, that would seem clearly related to the goods and services provided at the place of public accommodation and their use. If the press release was announcing second quarter earnings results, that would seem unrelated to the covered goods and services.
While there may be some ways to segment and carve out content, in most such cases we counsel a case-by-case approach to determining coverage.