The Americans with Disabilities Act in Cyberspace: ADA Applicability to Websites

The Americans with Disabilities Act in Cyberspace: ADA Applicability to Websites

Legal Sidebari

The Americans with Disabilities Act in
Cyberspace: ADA Applicability to Websites
October 20, 2022
In 1990, passage of the Americans with Disabilities Act (ADA) required businesses nationwide to
accommodate people with disabilities. Under the statute’s terms, for example, a “motion picture house” or
other “place of exhibition or entertainment” may not turn someone away because she uses a wheelchair,
must provide wheelchair seating with lines of sight comparable to standard seating, and must close-
caption movies so deaf patrons can understand the dialogue. But one question courts have long struggled
with is how the ADA applies, if at all, to cyberspace businesses. For instance, in 2022, is Netflix a “place
of exhibition or entertainment” covered like a physical “motion picture house”? Some have claimed that
courts’ inconsistent conclusions about how to apply the ADA in this context have encouraged forum
shopping (filing suit in the most favorable jurisdiction). Advocates for businesses and for people with
disabilities alike have called for regulatory and legislative action. The Department of Justice (DOJ),
charged with enforcing the relevant provisions of the ADA, recently attempted to clarify the agency’s
view, issuing guidance on cyberspace accessibility.
This Legal Sidebar discusses the ADA’s text and history, then looks at judicial assessment of whether and
when the ADA applies to websites and web applications. Next, it discusses DOJ’s views and closes with
considerations for Congress, including potential legislative measures to clarify if and when the ADA
applies to websites and web applications. Another Sidebar addresses how the ADA’s accessibility
mandate may apply to websites—in particular, it describes potential standards to determine a website’s
ADA compliance.
What Is a “Public Accommodation”? Defining the ADA’s Reach
Title III of the ADA applies to “public accommodations,” that is, businesses and nonprofits open to the
public that fall within the statute’s specified categories. Those categories were targeted at historically
brick-and-mortar businesses, which are then subject to accessibility and modification requirements. Many
courts, commentators, and agencies have long argued that the statutory text, written in a different era as
far as web commerce is concerned, leaves doubt about whether and how the statute applies in cyberspace.
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The ADA: Text and History
In passing the ADA, lawmakers took aim at the long-standing exclusion of people with disabilities from
active participation in society. Congress found that “historically, society has tended to isolate and
segregate individuals with disabilities.” Disability discrimination, as Congress recognized in discussing
the ADA’s statutory predecessor, often comes from apathy and “neglect” rather than intentional
exclusion. Thus, the ADA aimed to remedy, among other things, the “failure to make modifications to
existing facilities and practices” and “communication barriers” that tend to exclude people with
disabilities. One of the Committee reports accompanying the ADA noted, in particular, a concern with
information access, indicating that “[i]nformation exchange is one of the areas where there are still
substantial barriers.” The ADA, the report suggested, should “keep pace with the rapidly changing
technology of the times.”
The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more
major life activities.” The statute covers three major areas of public life: employment (Title I), public
services (state and local government) (Title II), and public accommodations (businesses and nonprofits
open to the public) (Title III). The ADA bars discrimination against people with disabilities in these areas
and requires reasonable modifications of rules, structures, and equipment to enable access. People denied
access can bring private suit against covered entities.
For businesses and nonprofits, the ADA’s definition of “public accommodation” lists 12 categories of
establishments, providing examples for each. The categories can be summed up as places for lodging,
food service, entertainment, public gathering, retail, health and personal care, transportation, exhibition,
recreation, education, social services, and exercise. In describing the listed businesses, the ADA
repeatedly calls them “place[s],” “office[s],” or “establishment[s].”
Title III’s emphasis on physical places is even more apparent in comparison with Title II of the ADA,
which covers public “services.” Title II requires modifications to local government services—parks,
licensing bureaus, education programs, police services, etc.—without reference to where they occur. It
covers “any State or local government,” including its departments, agencies, or instrumentalities. State
and local governments may not exclude people with disabilities from, deny them participation in, or deny
them the benefits of, any government “services, programs, or activities.” Title II does not restrict covered
government “services, programs or activities” by any reference to specific categories, facilities, or
amenities.
Judicial Interpretations
Over the ADA’s 30-year history, courts have split on whether Title III applies to nonphysical spaces like
websites. The issue came up even before the rise of internet commerce, regarding businesses with no
brick-and-mortar outlets. One circuit decided, for example, that an insurance plan is a public
accommodation, and another decided that it is not.
In later cases considering websites, courts have fallen into three camps. First, some courts have applied
the ADA to websites without restrictions. One such court, looking at the legislative history, reasoned that
committee reports suggest “the important quality public accommodations share is that they offer goods or
services to the public, not that they offer goods or services to the public at a physical location.” According
to these courts, a plaintiff “must show only that the web site falls within a general category listed under
the ADA.”
A second line of cases holds that the statute only applies to physical places and thus does not include
websites. As one court held in dismissing claims against the social media site Facebook, “Facebook
operates only in cyberspace, and . . . thus is not a ‘place of public accommodation.’” In support, the court
cited Title III’s text barring discrimination “by any person who owns, leases (or leases to) or operates a

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place of public accommodation.” Even though Facebook had some physical products in physical stores
(e.g., gift cards), it did not own or lease retail property.
A third line of cases has applied the ADA to some websites, depending on their connection to physical
businesses. So if an inaccessible website restricts access to restaurants, hotel reservations, or in-store
retail services, the website would fall under the ADA. As the Ninth Circuit put it, “[t]he statute applies to
the services of a place of public accommodation, not services in a place of public accommodation.” In
applying this rule to restaurant chain Domino’s online pizza ordering, the court determined that “[t]he
alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its
physical pizza franchises—which are places of public accommodation.” The Eleventh Circuit has, in an
unpublished opinion and in a vacated opinion, endorsed a similar view. And in another published opinion
the Eleventh Circuit has suggested, but not decided, that a website’s “nexus” with a physical business
could bring it under the ADA.
A number of district courts have also adopted this third approach, but many circuit courts have not
addressed the question of whether or how the ADA applies to websites, prompting one commentator to
note that case law on website accessibility is “still developing.”
Agency Interpretation and Guidance
On March 18, 2022, the Department of Justice (DOJ), charged with enforcing the relevant provisions of
the ADA, issued nonbinding web accessibility guidance. The guidance makes clear that, in DOJ’s view,
the ADA applies to at least some private websites, and it addresses how public accommodations can make
accessible the goods and services they offer online. Nevertheless, the guidance does not explicitly say
whether the ADA reaches all websites, including online-only businesses, nor does it say if the analysis
looks to any sort of “nexus” to a physical business. The guidance does not contend with the divergent
court precedent described above. Instead, the guidance lists several ADA categories of public
accommodations, then points out that “a website with inaccessible features can limit the ability of people
with disabilities to access a public accommodation’s goods, services, and privileges available through that
website.” The guidance thus suggests, but does not explicitly state, that DOJ considers online entities
offering goods and services under the categories of public accommodations listed in the guidance to be
covered by the ADA. The guidance concludes that “the ADA’s requirements apply to all the goods,
services, privileges, or activities offered by public accommodations, including those offered on the web.”
Without defining “public accommodation” in the internet context, this language appears to leave open the
possibility that DOJ sees web businesses as public accommodations even if they have no connection to a
physical business.
Aside from commercial businesses, the DOJ guidance also addresses local and state government websites,
covered under ADA’s Title II. DOJ does not address the different scope of the titles and does not state
whether government websites have different ADA responsibilities. In language much like its Title III
guidance, DOJ notes that “[a] website with inaccessible features can limit the ability of people with
disabilities to access a public entity’s programs, services and activities.” Thus, according to the guidance,
“the ADA’s requirements apply to all the services, programs, or activities of state and local governments,
including those offered on the web.” For state and local governments under Title II, however, DOJ has
also announced that it will begin the process of writing regulations, aiming to issue a Notice of Proposed
Rulemaking in April 2023.
The 2022 guidance is not DOJ’s first effort to address web accessibility. In 2010, DOJ published an
Advance Notice of Proposed Rulemaking for website accessibility. In its proposal, DOJ acknowledged
potential differences in how the ADA might reach government websites and private websites. “There is no
doubt that the websites of state and local government entities are covered by [T]itle II of the ADA,” the
notice stated. As DOJ recognized, existing regulations already provided that Title II “applies to all

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services, programs, and activities provided or made available by public entities.” For private websites,
DOJ acknowledged a lack of consensus. “The Department believes that [T]itle III reaches the Web sites of
entities that provide goods or services that fall within the 12 categories of ‘public accommodations,’ as
defined by the statute and regulations,” DOJ affirmed, despite “remaining uncertainty” in judicial
precedent.
In 2017, DOJ withdrew its regulatory proposals for websites, stating that it was “evaluating whether
promulgating regulations about the accessibility of Web information and services is necessary and
appropriate.” In 2018, however, Assistant Attorney General Stephen E. Boyd, responding to a
congressional inquiry, wrote that the Department had long applied the ADA to private websites and
assured that “the absence of a specific regulation does not serve as a basis for noncompliance.”
Legislative Action and Considerations for Congress
Congress has periodically considered the issue of the ADA and website access, holding hearings in 2000
and 2010. In June 2018, more than 100 Members of Congress joined a letter to then-Attorney General Jeff
Sessions urging DOJ to tackle “unresolved questions about the applicability of the ADA to websites.”
Various bills in the 117th Congress have proposed changes to the ADA or have sought to establish
separate accessibility requirements for particular online businesses. For instance, the Online Accessibility
Act, H.R. 1100, introduced in 2021, would prohibit discrimination in “consumer facing websites,” defined
as “any website that is purposefully made accessible to the public for commercial purposes,” as well as in
“mobile applications” that are “consumer facing.” Before suing under the proposed law, a plaintiff would
need to provide the website owner with notice and an opportunity to correct accessibility problems. If the
problems remained unresolved, the plaintiff could file a complaint with DOJ. An earlier version of the
bill, H.R. 8478, appeared in 2020. The Websites and Software Applications Accessibility Act, S. 4998,
introduced in September 2022, would specify that employers, private providers of public
accommodations, and state and local governments, among others, must generally make their websites and
applications accessible. The bill would also allow suit against website and software developers when their
inaccessible products are used in employment, public accommodations, or local government settings.
Other bills include H.R. 4686, introduced in the 116th Congress, which would have covered certain
transportation-related websites.
Aside from these proposed measures, there are other considerations for potential legislation. Cyberspace
presents particular legal challenges. For example, websites’ ubiquity and decentralization raise unique
questions of venue and extraterritoriality. Issues of standing to sue, appropriate remedies, and what
constitutes denial of access differ in social media and online shopping contexts compared to traditional
businesses such as restaurants or movie theaters.
Potential legislative considerations for defining covered businesses might include whether to broadly
define included entities, specifically designate covered categories of businesses (as in the current Title
III), or list excluded businesses. Other exclusions might identify certain goods or services that should not
be covered or carve out businesses based on size, population served, or nonprofit status. Additional
considerations might include whether a new statute should reach only consumer-facing websites, as does
H.R. 1100, or cover wholesalers, underwriters, or similar companies if they serve only other businesses.

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Alternatively, Congress could codify the nexus requirement that some courts have applied, requiring
accessible websites only if existing sites impede access to physical businesses. Congress may also
consider covering or exempting web logs or other sites that offer no goods or services. Along these lines,
at least one scholar has proposed including only websites whose goods or services could be provided in a
physical space. Separately, sites that rely on user-generated content may have difficulty meeting particular
accessibility requirements, such as a captioning requirement for a site hosting users’ video clips.
Excluding user-generated content, as Congress has done in other internet measures, may be an option.
Another option may be to offer case-by-case exemptions, as does the current ADA, which excuses
compliance when it proves unduly burdensome or infeasible under the circumstances, or when
compliance would fundamentally alter the goods or services provided.
An additional consideration is whether and how any legislation addressing ADA requirements for
websites should apply retroactively. Requirements for physical architecture are not entirely retroactive
under the current ADA. Businesses in pre-ADA buildings only need to make structural changes that are
“readily achievable.” Only new construction and substantial renovations must meet current standards. If
imposing new requirements on cyberspace infrastructure, Congress may consider whether and how the
rules should require rebuilding existing websites or applications. If imposing retroactive requirements,
legislators may consider an appropriate implementation period. Congress could consider grant programs
or other funding measures to bring entities into compliance.

Author Information

April J. Anderson

Legislative Attorney

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