This is post #12 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)
The defendant operates a public accommodation—typically, a physical place of business—that fits the definition of public accommodation under the ADA.
The plaintiff is representative of an overall class of individuals. The vast majority of the time, that class of individuals is people that are blind or visually impaired.
The defendant operates a website that is an extension of the public accommodation it operates. In some cases there is a claim that the website is part of the public accommodation or the public accommodation itself, in some, that it’s an auxiliary aid or service of the public accommodation, and in others, it’s just related to the enjoyment of the goods and services. Often these claims overlap without particularly clear borders between them. Here is a pretty concise version of that logic we pulled from a recent lawsuit:
“…the Website is an extension of, and gateway to, Defendant’s physical stores. By this nexus, the Website is characterized as an intangible service, privilege and advantage provided by a place of public accommodation as defined under the ADA and thus an extension of the services, privileges and advantages made available to the general public by Defendant through its brick and mortar locations and businesses.”
The website is not accessible and has not been for some time. Generally, this is specific to the plaintiff’s experience as framed over the course of a period of time. So, it’s not just that the plaintiff encountered these issues once. They happened many times and are still present as of the date of the filing.
The issues of access are significant. Often, there is a list of things the plaintiff attempted to do on the site that they could not accomplish. In most cases, these are articulated as “barriers”. The effect of these barriers is that the plaintiff can’t use the goods or services—the ‘stuff’—provided at the place of public accommodation in an equivalent fashion to a person without disabilities.
One. The inaccessibility of the website kept the plaintiff from the “full and equal enjoyment of the goods and services” provided via the website. This is a broad claim made under the General Rule of the statute under 42 U.S.C § 12182 (a) and reiterated under 28 CFR 36.201 (a).
Two. The website has barriers to access and the defendant is required to remove those barriers. As a side note, the ADA has a concept of barriers. The basic idea is that under the ADA is that it’s the duty of the public accommodation to remove barriers to ensure full and equal access to public accommodation. In the case of the website, the lack of accessible coding creates a barrier to access and so a key part of the claim is the requirement to remove these barriers. As we will explain in an upcoming post, our view is this doesn’t apply since the statute and regulatory record clearly indicate barriers are physical in nature. Sadly, however, our view has not dissuaded the plaintiff’s counsel from claiming that defendants are required to remove barriers.
Three. The public accommodation must provide auxiliary aids and services to ensure effective communication for individuals with disabilities. These are claims that find their genesis under 42 U.S.C. § 12182(b)(2)(A) (iii) and the related section of the regulations at 28 C.F.R. § 36.303. This requires that the covered accommodation provide auxiliary aids and services to ensure that, “no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” The basic idea here is that the covered entity has an obligation to communicate effectively with people with disabilities. You do that via an auxiliary aid or service that provides that communication. For our purposes, the idea is that the website is the auxiliary aid or service and, unless it is accessible, it fails to be effective as a mode of communication.
Overall Claim. The defendant’s policy, practice, and procedures have resulted in an inaccessible site. You can get here through any of one, two, or three. The idea is that the inaccessibility of the website is a result of the defendants’ policies, practices, and procedures an inaccessible website. These are pervasive, widespread, persistent, and have occurred for a long period of time. Therefore, the plaintiff is requesting that the court provide injunctive relief to compel the defendant to fix their policies, practices, and procedures—basically how they do business—to ensure access for people with disabilities. This argument can be constructed in a variety of fashions. In general, though, it goes something like this:
- The website wasn’t built with accessibility in mind even though the defendant reasonably should have been aware that accessibility was a requirement;
- As updates have happened, the site hasn’t been made more accessible;
- The organization has no corporate policy or program in place to become or remain accessible;
- Given the lack of accessibility—and no plan to make it accessible—the plaintiff is engaged in an intentional act of discrimination.
Flipping that around you can think of it like this: because the defendant doesn’t have an active policy to make the site accessible the plaintiff, therefore, has a de facto policy to keep the site from being accessible. That lack can reasonably be alleged as discrimination under the ADA.
While we don’t agree with the application of the “removal of barriers” requirements to websites, that concept comes back into scope here. The argument goes something like this:
- The lack of a policy and program to control for accessibility as site updates occur shows a systemic failure to prevent and remove accessibility barriers;
- Thus, part of the injunctive relief forces the plaintiff to change these policies to ensure new barriers won’t be created in the future and forces the removal of current barriers.
Given that, the defendant needs to make changes to their policies and practices as needed to support the accessibility of users with disabilities. The defendant has failed to do that for several years so, absent court action (injunctive relief), the plaintiff would reasonably expect their non-compliance to continue.
The Focus on Policies, Practices, and Procedures
You’ll note a large amount of this all comes back to policies, practices, and procedures: how the covered entity does business. The ADA specifically gives the court the ability to force organizations to modify policies, practices, and procedures under 42 U.S.C. § 12188(b)(2)(A)(ii) if that is an “appropriate” remedy. That’s mirrored in 28 C.F.R. § 36.504 where the court can force modification of policies and procedures.
Ultimately, this all maps back to the specific prohibitions for accessibility under 42 U.S.C. §12182(b)(2)(A)(ii) which includes in its definition of discrimination: “a failure to make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” If you’ve failed to make reasonable modifications to policies, practices, or procedures to ensure equivalent access you’ve discriminated against people with disabilities
So that’s the core of what the plaintiff is doing—asking for injunctive relief from the court to force the modification of the policies, practices, and procedures of the defendant that resulted in this inaccessible piece of technology. This is the concept that’s the trickiest to understand. The idea here is that because the organization didn’t operationally (in a standardized fashion) act to ensure accessibility, the plaintiff must ask the court to force that.