By: Jeffrey A. Cohen, Esq. & Michael B. Cooper, Esq.
Cohen & Richardson, PC

There is a current litigation trend in which courts are being asked to determine whether websites, specifically websites facilitating business transactions, fall under the purview of the Americans with Disabilities Act (ADA).  In recent decisions, courts have been moving away from their previous view and applying the provisions of the ADA to e-commerce sites.  This trend is likely to continue due to a recent Justice Department initiative targeted at ensuring accessibility for all to the internet.

As recently as 2002, courts took the position that the ADA did not apply to websites because websites were deemed to be outside the ADA’s definition of a “place of public accommodation.”  In Access Now Inc. v. Southwest Airlines Co., 227 F.Supp.2d 1312 (S.D. Fla. 2002), the court dismissed a complaint alleging ADA violations because a “place of public accommodation” had to be a physical place.  Therefore, despite the fact that the site was not accessible for the blind, the court held that the website was outside the domain of the ADA.

Courts have been trending away from this position and moving toward a broader view of the definition of “public place of accommodation.”  In National Federation of the Blind v. Target, 452 F.Supp.2d 946 (N.D. Cal. 2006), the court ruled that transactional websites could be public places and fall within the provisions of the ADA.  In Target, the court held that the transactional nature of Target’s website had a sufficient nexus with the physical store so as to warrant application of the ADA.  Therefore, the court held that Plaintiffs’ allegations regarding accessibility for the blind were sufficient to maintain a claim against Target.

This issue is more pressing now that the United States Justice Department has announced a “web accessibility” initiative.  The Justice Department intends to ensure that individuals with disabilities have access to critical information, programs and services provided on the Internet by state and local governments, businesses and educators.  Of particular importance, the Justice Department has stated that the new provision will apply to “new” sites after the regulation is enacted; however, a “new” site includes a site that has been completely redesigned.  Therefore, practically speaking, in time this regulation will apply to most websites transacting business.  While the Justice Department continues to formulate its policy, the end result is clear – there will be an increase in the number of claims brought against websites under the ADA.

The concern for websites is not only compliance with the ADA, but also the potential recovery by plaintiffs who bring suit for alleged violations.  The ADA does not allow a plaintiff to recover damages arising from inaccessibility; instead, a plaintiff’s remedy is limited to injunctive relief that could disrupt a website’s business operations.  However, the ADA does allow for the recovery of attorneys’ fees, which can quickly raise the amount of potential liability a website faces in a claim brought under the ADA.

Web businesses will be well-served to take a proactive approach ensuring their site is accessible for those with visual disabilities before either a Justice Department investigation or litigation commences.

Copyright (c) 2011 – Cohen & Richardson,  PC – All Rights Reserved.

Jeffrey A. Cohen, Esq. is an Internet attorney and the founder of InternetLitigators^®. He is a partner in the California business law firm Cohen & Richardson, PC.  Mr. Cohen has a degree in advertising from the Arizona State University School of Business and represents Internet and Internet marketing companies around the world. Mr. Cohen can be contacted at JCohen [at] Internetlitigators.com.

Michael B. Cooper. Esq. is an associate with the firm and represents clients in litigation arising out of commercial or contractual disputes, tort and personal injury claims and real estate disputes. Mr. Cooper can be reached at MCooper [at] Corichlaw.com.

The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information. The opinions expressed herein are those of Mr. Cohen and do not necessarily reflect the views of InternetLitigators^® or Cohen & Richardson.

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