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Accessibility legislation applies to more than just your brick and mortar location.

Is Your Website ADA Compliant?

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How restaurants can ensure their websites are ADA compliant to avoid costly lawsuits.
By Lewis S. Wiener and Alexander P. Fuchs January 2017 Expert Insights

Compliance with the Americans with Disabilities Act (ADA) is not a novel concept for the restaurant industry. Since the ADA’s enactment, restaurants have grappled with ways to ensure that they are accessible to individuals with disabilities. The steady shift in our economy from physical brick-and-mortar locations to online web-based commerce, however, has led to an expanded interpretation of the ADA that encompasses not only a business’s physical location, but also its website. This expansion 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 the blind and visually impaired. Over the past year, more than 240 of these lawsuits have been filed, many of them class actions against companies in the hospitality and food service industries, including a number of full-service restaurants and food chains. Given the increasing number of website accessibility suits, restaurants that maintain a web presence must understand the requirements of the ADA and ensure that their websites are ADA compliant.

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As originally enacted, the ADA did not expressly include websites as places of “public accommodation,” principally because the Internet was in its infancy at the time.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 reservations and food ordering, 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.

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 Websites

Restaurant websites are especially vulnerable to lawsuits alleging violations of the ADA under both the Seventh and Ninth Circuit views 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 place to-go orders or order 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 do not offer goods for sale, but instead offer services like online job postings or 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 full-service restaurants including, among others, Capital Grille, Del Frisco’s Grille, Outback Steakhouse, PF Chang’s, Hillstone, and Olive Garden, alleging that some or all of the companies’ websites are inaccessible to the blind and visually impaired. Smaller restaurants and retailers have also been targeted with suits against Benjamin Steakhouse, Peter Luger, and Southern Hospitality BBQ, all 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 have highlighted that not all publicly available websites are ADA compliant because they, among other things, fail to incorporate screen reader technology. Building the website right to ensure that the website is designed and constructed so that it is compatible with screen reader technology is the first step in ensuring compliance with the ADA.

· 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. 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. Websites that are strictly informational in nature are unlikely to violate the ADA because they do not offer goods or services. For small businesses, one important question is 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. 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 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 voluntarily or following legal action, plaintiffs may begin to focus on smaller establishments. 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. 

Lewis S. Wiener, a former senior trial lawyer with the U.S. Department of Justice, is a partner in the Washington, D.C., office of Sutherland Asbill & Brennan LLP.
Alexander P. Fuchs is an associate in the firm's New York office.