Confronting the rise in ADA website accessibility lawsuits against businesses

Joseph “Chip” Sheppard III
Joseph “Chip” Sheppard is a shareholder in the litigation/dispute resolution and transactional practice groups of Carnahan, Evans, Cantwell & Brown, P.C. He practices in the areas of medical marijuana, business, real estate, employment, acquisitions, banking, securities, and intellectual property. Sheppard received his J.D. degree from Southern Methodist University School of Law. He is a past president of the Springfield Metropolitan Bar Association and is frequently named on the Best Lawyers in America and Missouri-Kansas Super Lawyers lists. He was named 2019 Missouri Lawyer of the Year by Missouri Lawyers Weekly.
 

Andrew T. Peebles
Andrew T. Peebles is a member of the estate planning practice group of Carnahan, Evans, Cantwell, & Brown, P.C. Peebles focuses his practice on estate planning, probate and trust administration, asset protection planning, business formation, and succession planning. He earned his J.D. degree from the University of Missouri School of Law, and he was recently named to the 2021 Best Lawyers: Ones to Watch For list.

The rise of e-commerce (commercial transactions conducted electronically through the internet) has also been dramatic. Clients and customers are increasingly finding lawyers and other service providers through online searches, reviewing websites of multiple firms and businesses until they find the best fit for their specific needs.² While many positive outcomes have followed the rise of doing business in a digital world, some less-than-desirable problems have emerged.

According to the Center for Disease Control and Prevention, approximately 12 million people 40 years and older in the United States have some level of vision impairment, including 1 million who are blind.³ Additionally, one in eight people in the U.S. 12 years or older (comprising some 30 million individuals) has hearing loss in both ears.⁴ Due to these disabilities, millions of Americans have great difficulty accessing, using, and understanding the information provided on websites that are not sufficiently equipped to communicate with individuals who have disabilities. For example, many websites fail to include sufficient contrast in coloring on their various pages, making it extremely difficult for those who are color blind to view the pictures and text. In addition, the lack of subtitles for videos contained on a webpage renders it impossible for individuals who are deaf or hearing impaired to acquire the information communicated through such media. As a result of these website deficiencies, millions of people are barred from the everyday and essential function of obtaining information via the internet.

In response to these issues, there has been a dramatic rise in lawsuits alleging that company websites, along with mobile phone apps and online job applications, are not properly accessible in violation of the Americans with Disabilities Act (ADA).⁵ These claims assert two primary allegations: (1) private company websites qualify as places of public accommodation under the ADA, and (2) websites with barriers to access (such as a lack of compatible screen-reading software) deny plaintiffs the right of equal access.⁶

In 2016, 262 of these cases were filed nationwide.⁷ By 2019, that number had risen to 2,235, a nearly 1,000% increase from three years prior.⁸ While claims and demand letters have undoubtedly been received by Missouri businesses in recent years, it does not appear that any of those claims have made it far enough to require consideration by a Missouri court (likely due to settlement). The retail industry is most often targeted by these claims, followed by food service, entertainment, and hospitality businesses.⁹ Law firms, and the websites that they operate, are not immune to these suits, though. As a result of this surge in filing ADA website compliance claims and the indication that such claims will continue to increase into the future, it is vital that lawyers understand the basics of this new type of lawsuit and counsel their clients (and their own firms) on how to defend against them.

History of the ADA and Elements of a Title III Claim
The ADA was enacted in 1990 to provide a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”¹⁰ The ADA’s protections are found in three subchapters: Title I protects against employment discrimination; Title II protects against discrimination by a public entity; and Title III prohibits discrimination by a place of public accommodation.¹¹ It is this final subchapter that will be the focus of this article.

Title III of the ADA states that “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.”¹² Twelve categories of private entities are listed within this statute to indicate what constitutes a “public accommodation,”¹³ including hotels, restaurants, movie theaters, grocery stores, libraries, schools, gyms, health care providers, and the “office of an accountant or lawyer.”¹⁴

Under the ADA, places of public accommodation are required to take steps to make their goods and services readily available to people with disabilities.¹⁵ This might require “reasonable modifications in policies, practices, or procedures,” like providing access to auxiliary aids and services to ensure effective communication or removing structural and communication barriers.¹⁶ Title III requirements do not apply where the modification or auxiliary aid or service would fundamentally alter the nature of the goods and services offered or result in an undue burden on the provider.¹⁷

To establish a claim for discrimination under Title III, a plaintiff must show three things: (1) he or she has a disability (as defined by the ADA), (2) the defendant owns, leases, or operates a place of public accommodation, and (3) the defendant discriminated against the plaintiff (as defined by the ADA).¹⁸ According to the ADA, discrimination occurs when an individual with a disability is denied the opportunity to participate in programs or services or when he or she is provided with separate, but unequal, goods or services.¹⁹ Plaintiffs must demonstrate standing to satisfy the “case in controversy” requirement under Article III of the U.S. Constitution to maintain the lawsuit.²⁰ There is standing if the plaintiff suffered an injury-in-fact, meaning the invasion of a legally protected interest which is concrete, particularized, and actual and imminent (as opposed to conjectural or hypothetical).²¹ There must also be some causal connection between the asserted injury and the challenged action which is likely to be redressed by a favorable decision.²²

Any place of public accommodation found to be in violation of Title III of the ADA may be subject to injunctive relief, attorneys’ fees and expenses, and expert witness fees. While private causes of action may also be pursued,²³ a judgment for monetary damages is available only in an action brought by the attorney general in cases of overwhelming public importance or involving an alleged pattern and practice of discrimination against those with disabilities.²⁴ Since 2013, the number of ADA claims brought in federal court has risen from 2,722 to more than 11,000 in 2019.²⁵ California, New York, and Florida overwhelmingly led the way in the number of claims filed nationwide in 2019, but an increasing number of states have been taking advantage of the ADA’s provisions in recent years.²⁶

Application of Title III to Websites
At first glance, the plain language of Title III and its regulations does not appear to apply to websites and other electronic applications. After all, the internet as we know it today did not exist when the ADA was passed in 1990, and the possibility that technology would pervade every aspect of society and nearly monopolize business communication was likely not on the minds of legislators 30 years ago. As a result, none of the ADA’s accessibility guidelines explicitly mention websites operated by public accommodations.²⁷ The provisions of the ADA still require that public accommodations provide “equal access” to goods and services offered to all patrons.²⁸ Additionally, a public accommodation must still furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.²⁹ Therefore, while the plain language of the statute does not contemplate websites as falling under its purview, the broad language of the ADA may still bring such “accommodations” into play. In recent years, the U.S. Department of Justice, Congress, and the courts have all considered expanding the language of the ADA to expressly sanction website “equal access” claims.

U.S. Department of Justice’s Interpretation
Since 2004, the U.S. Department of Justice (DOJ) – which is tasked with the interpretation and enforcement of Title III – has consistently taken the position that “the ADA applies to public accommodation’s websites.”³⁰ A 2010 Advanced Notice of Proposed Rulemaking (ANPRM) issued by the DOJ explained the basis for an expanded reading of the regulations of Title III:

When the ADA was enacted in 1990, the Internet as we know it today … did not exist. Today, the Internet, most notably the sites of the Web, plays a critical role in the daily personal, professional, civic, and business life of Americans. Increasingly, private entities are providing goods and services to the public through websites that operate as places of public accommodation under title III of the ADA. Similarly, many public entities under title II are using websites to provide the public access to their programs, services, and activities. Many websites of public accommodations and governmental entities, however, render use by individuals with disabilities difficult or impossible due to barriers posed by websites designed without accessible features.³¹

In 2015, the DOJ went even further with these views by filing statements of interest in the cases of National Association of the Deaf v. Harvard University and National Association of the Deaf v. Massachusetts Institute of Technology, stating the department planned to explore rulemaking to provide additional guidance as to the applicability of the ADA to websites and technology.³² In its 2015 statement of regulatory priorities, the DOJ announced it would publish the proposed rules regarding website accessibility in early 2018.³³

However, in December 2017, the DOJ formally withdrew its 2010 ANPRM and abandoned its rulemaking efforts, explaining that it was “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate” by reviewing additional data and conducting further analysis.³⁴ The DOJ planned to “continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”³⁵

In 2018, a bi-partisan group of 103 U.S. representatives requested clarity on “unresolved questions about the applicability of the ADA to websites.”³⁶ Former U.S. Assistant Attorney General Stephen Boyd responded to this request as follows:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities … Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements. Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA ... Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.³⁷

While indicative of the DOJ’s opinion, this response nonetheless failed to positively assert as a fact that websites fall under the constraints of the ADA. No other statements, rules, or regulations have been issued by the DOJ regarding this topic since 2018, and no national standard exists at this time. However, despite this lack of concrete guidance regarding how websites can remain compliant with the ADA, the DOJ’s previous statements have, at the very least, consistently indicated its opinion that websites should be subject to the ADA’s guidelines and accessible to individuals with disabilities.

Congressional Inaction
To date, Congress has failed to adequately clarify the scope of the ADA in terms of website accessibility compliance for companies. The focus for decades has been discrimination that occurs in person and through physical interactions, such as a restaurant that fails to include a wheelchair ramp. However, technology and the internet have been steadily increasing in use for years, and Congress should provide clarity since the issue lacks concrete regulations.

The first time this issue was directly addressed was in February 2018, 28 years after the passage of the ADA. Following the rapid increase of ADA website accessibility lawsuits and the frequent negative media coverage concerning such suits, the U.S. House of Representative passed legislation by a 225-195 vote that would have amended the ADA to force prospective plaintiffs to first provide written notice of noncompliance to public accommodations before filing suit.³⁸ Under this proposed law, titled the “ADA Education and Reform Act of 2017,” the company would then have 60 days following such notice to address the plaintiff’s concerns.³⁹ The act stalled in the U.S. Senate, where 43 senators (enough for a filibuster) pledged in writing to block a vote on the legislation.⁴⁰

The most recent attempt by Congress to clarify this issue occurred in 2020, when the House of Representatives introduced the “Online Accessibility Act.”⁴¹ It would create a new Title VI under the ADA which focuses entirely on consumer-facing websites and mobile applications.⁴²

Federal Courts of Appeal Split
Since the mid-1990s, courts across the nation have grappled with whether Title III’s coverage is limited to physical spaces and whether a company’s website requires a nexus to a physical location to be subject to the ADA’s protections. Unfortunately, different conclusions have been reached in varying parts of the country, leaving uncertainty as to the universal answer to the question.

The 1st, 2nd, and 7th U.S. Circuit Court of Appeals have found that a website can be a place of public accommodation independent of any connection to a physical space.⁴³ On the other hand, the 3rd, 6th, 9th, and 11th U.S. Circuit Court of appeals have held that places of public accommodation are limited to physical places, but that goods and services provided by a public accommodation, including those provided on websites, could conceivably fall within the ADA’s protections if they have a sufficient nexus to a physical location.⁴⁴ Even the courts who are in agreement in applying this “nexus” theory have come to contrasting conclusions about whether Title III requires a website to be accessible, however.⁴⁵ At the time this article was written, the 4th, 5th, 8th (which includes Missouri), and 10th U.S. Circuit Court of Appeals had not ruled on the ADA website accessibility question. The U.S. Supreme Court has similarly declined to address the issue at the time the author wrote this article.⁴⁶

Due to the existing disagreement in the court system, defendants who have chosen to litigate these lawsuits have found varying degrees of success depending on the location of the suit.

In a 1994 case filed against a health insurance provider, the 1st U.S. Circuit Court of Appeals found that Title III is not limited to physical structures.⁴⁷ The court held that “many goods and services are sold over the telephone or by mail with customers never physically entering the premises of a commercial entity to purchase the goods or services,” and therefore such businesses are not excluded from Title III simply because they are not a physical location.⁴⁸ Alternatively, a 2000 case from the 9th U.S. Circuit Court of Appeals, also filed against an insurance company, held that places of public accommodation are indeed limited to “actual, physical places.”⁴⁹ In that case, the court held that, because there was no nexus to the services which the insurance company offered to the public from its insurance office, Title III of the ADA did not apply.⁵⁰

Streaming service giant Netflix has been the target of such claims as well. A Massachusetts court held in the case of National Association of the Deaf v. Netflix, Inc. that Netflix was a place of public accommodation, even though it could be accessed only in private residences.⁵¹ The court stated that “(t)he ADA covers the services ‘of’ a public accommodation, not services ‘at’ or ‘in’ a public accommodation.”⁵² However, in Cullen v. Netflix, Inc., a California district court came to the opposite conclusion, holding that Netflix was not a place of public accommodation subject to Title III since it only operated on the web, not a physical store.⁵³ This result was reiterated in favor of video rental provider Redbox in the 2014 case of Jancik v. Redbox Automated Retail, LLC.⁵⁴ In that case, the court granted Redbox’s motion to dismiss and held that it did not have to include captions for its library of web-based videos for use by viewers with hearing impairments since a website is not a place of public accommodation.⁵⁵

The 2017 case of Gil v. Winn-Dixie Stores, Inc. out of Florida was the first ADA website accessibility case in which a judge expressly ordered a business to comply with an expansive list of guidelines created by digital experts for making website content more accessible, called Website Content Accessibility Guidelines (“WCAG”) 2.0, widely held to be the “gold standard” in website compliance.⁵⁶ The plaintiff, who is legally blind, sued Winn-Dixie over his inability to use the store’s website due to the site’s incompatibility with screen reader software.⁵⁷ The court found that Winn-Dixie’s website was indeed a place of public accommodation because it was largely integrated with its physical store locations.⁵⁸ The court also noted that the website services identified by the plaintiff in his complaint were directly related to physical stores.⁵⁹ The court held that Winn-Dixie’s website violated the ADA because it was not sufficiently accessible to customers who are visually impaired, and the court issued injunctive relief stating that the website must conform to the criteria of WCAG 2.0.⁶⁰

Winn-Dixie appealed to the 11th U.S. Circuit Court of Appeals, which held oral argument in 2018.⁶¹ The circuit court issued its decision April 7, 2021, vacating the 2017 trial court ruling and concluding that websites are not a public accommodation, as the ADA defines the term, and that Winn-Dixie’s website did not create an “intangible barrier” to its services.⁶² The majority used a strict textualist approach in its ruling, pointing to the extensive list of public accommodations contained within Title III of the ADA, all “physical locations in which individuals will find themselves in their daily lives.”⁶³ The court noted that this list is limited to “actual, physical spaces.”⁶⁴ Intangible spaces, like websites, simply aren’t places of public accommodation under the ADA, according to the circuit court.⁶⁵ The majority opinion acknowledged that, “For many Americans like Gil, inaccessibility online can be a significant inconvenience. But constitutional separation of powers principles demand that the details concerning whether and how these difficulties should be resolved is a project best left to Congress.”⁶⁶

This ruling further deepens the divide between courts across the nation on this important issue. Even the 11th U.S. Circuit Court of Appeals panel was in severe disagreement.⁶⁷ Judge  Jill Pryor wrote a lengthy dissent, arguing that the majority allowed Winn-Dixie to treat the plaintiff “as a second-class customer,” which is exactly what the ADA was intended to prevent.⁶⁸ The plaintiff’s counsel indicated shortly after the ruling that his client was prepared to ask the U.S. Supreme Court to take the case, which attracted significant attention both from business groups backing Winn-Dixie and from civil rights advocates siding with the plaintiff.⁶⁹ “The blind have lost the ADA,” the plaintiff’s counsel remarked.⁷⁰

In handing down its ruling, the 11th U.S. Circuit Court of Appeals explicitly rejected a legal theory developed by the 9th U.S. Circuit Court of Appeals in a similar 2019 case.⁷¹ In Robles v. Domino’s Pizza LLC, the 9th U.S. Circuit Court of Appeals reversed the district court’s original ruling and held that a website managed by a Domino’s pizza store, as well as its phone application, were subject to the requirements of Title III.⁷² The court justified this conclusion based on the ADA mandate that places of public accommodation provide auxiliary aid and services.⁷³ The court held that imposing liability on Domino’s would not violate due process, as the ADA statute was not impermissibly vague, and Domino’s had received fair notice that its website and phone app must comply with the ADA.⁷⁴ Applying the “nexus” theory, the court found that Title III regulates these online portals because they “connect customers to the goods and services of Domino’s physical restaurants.”⁷⁵ Therefore, the issue was “whether Domino’s website and phone app provide the blind with auxiliary aids and services for effective communication and full and equal enjoyment of its products and services.”⁷⁶

Domino’s sought review from the U.S. Supreme Court with strong backing from many of the same business groups that filed amicus briefs for Winn-Dixie in the Gil case.⁷⁷ While the U.S. Supreme Court denied Domino’s petition in 2019, the attention and publicity given to the split between the 9th and 11th circuits courts may be the perfect scenario for the highest court to finally take up this issue.⁷⁸ However, until that occurs, the best way to avoid these lawsuits may be to evaluate court opinions in the circuit in which one’s business is located.

Is Your Website ADA Compliant?
Courts have primarily relied on WCAG 2.0 for determining whether a website violates Title III of the ADA.⁷⁹ As a result, a business cannot go wrong by reviewing these guidelines, as well as WCAG 2.1, and attempting to conform its website accordingly. WCAG 2.0 outlines four main principles for website accessible design; the site must be perceivable, operable, understandable, and robust. This means the information presented on a website must be perceivable to users (e.g., incorporating the use of captions or audible screen-readers); users must be able to operate and navigate the site easily (e.g., utilizing assistive technologies); users must be able to understand the information presented on the site (i.e., understand not only the content, but how to operate the website); and the website must be robust and current (i.e., users must be able to access the content as technologies advance).⁸⁰

Due to the lack of guidance and split opinions, businesses owners might remain confused regarding what website accessibility standards to follow. The DOJ’s 2018 statement at least clarified that the important point businesses should consider is not whether to comply with a certain set of guidelines, but whether a person with a disability can access the company’s goods, services, and benefits through its website. Absent the adoption of specific, universal requirements or guidance from Congress, the DOJ, or the U.S. Supreme Court, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Noncompliance with a voluntary technical standard for website accessibility (e.g., WCAG 2.0) does not necessarily indicate noncompliance with the ADA.

However, businesses should be proactive to avoid ADA website accessibility lawsuits. A company-wide website accessibility policy should be created and implemented for every business. Such a policy should provide guidelines for training employees in the ADA’s requirements, soliciting feedback from clients and website users, providing a platform for user complaints and requests for accommodations, outlining procedures for quickly responding to accessibility issues, and providing alternative ways for users to access information. It is also prudent to hire a web designer or digital marketing team to perform a periodic review and audit of your website and complete updates to ensure it is compatible with existing accessibility laws.⁸¹

Conclusion
Website accessibility lawsuits have become a cottage industry in recent years, and the evidence indicates that the filing of these claims will only increase.⁸² Unfortunately, there is a lack of solid and consistent guidance on how to avoid these lawsuits by ensuring a business’s website follows ADA standards.

The burden remains with Congress to pass meaningful legislation to clarify what is expected of businesses seeking ADA compliance. It seems improbable that the U.S. Supreme Court will resolve the split in the existing circuit court decisions anytime soon, although the pressure has increased in the wake of the recent Gil decision. Therefore, it behooves businesses to take proactive steps toward making their websites as accessible as possible to avoid website accessibility lawsuits.

Endnotes
1 Joseph “Chip” Sheppard is a shareholder in the litigation/dispute resolution and transactional practice groups of Carnahan, Evans, Cantwell & Brown, P.C. He practices in the areas of medical marijuana, business, real estate, employment, acquisitions, banking, securities, and intellectual property. Sheppard received his J.D. degree from Southern Methodist University School of Law. He is a past president of the Springfield Metropolitan Bar Association and is frequently named on the Best Lawyers in America and Missouri-Kansas Super Lawyers lists. He was named 2019 Missouri Lawyer of the Year by Missouri Lawyers Weekly.

Andrew T. Peebles is a member of the estate planning practice group of Carnahan, Evans, Cantwell, & Brown, P.C. Peebles focuses his practice on estate planning, probate and trust administration, asset protection planning, business formation, and succession planning. He earned his J.D. degree from the University of Missouri School of Law, and he was recently named to the 2021 Best Lawyers: Ones to Watch For list.

2 See Clio, Legal Trends Report 16 (2017).

3 Fast Facts of Common Eye Disorders, Centers for Disease Control and Prevention (June 9, 2020), https://www.cdc.gov/visionhealth/basics/ced/fastfacts.htm.

4 Quick Statistics About Hearing, National Institute on Deafness and Other Communication Disorders(March 25, 2021), https://www.nidcd.nih.gov/health/statistics/quick-statistics-hearing.

5 See ADA Website Compliance Lawsuits & Settlements: Examples of Cases, Rev (Apr. 2, 2020), https://www.rev.com/blog/ada-website-compliance-lawsuits-settlements-examples-of-cases; Melanie A. Convoy et al., When Good Sites Go Bad: The Growing Risk of Website Accessibility Litigation, 9 The Nat’l L. Rev. 244, (Aug. 2, 2019); Allen Smith, Potential Job Applicants Sue Companies with Difficult Online Forms, SHRM (Oct. 22, 2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/job-applicants-sue-companies-with-difficult-online-forms.aspx.

6 See id.

7 2019 End of Year Web Accessibility Lawsuit Recap Report, Jackson Lewis (2019).

8 Id.

9 Id.

10 See John Moritz, How George H.W. Bush’s support of ADA literally opened doors for disabled people, Caller Times (Dec. 7, 2018); 42 U.S.C. § 12101(b)(1) (2018).

11 42 U.S.C. §§ 12111-12117, 12131-12165, 1218-12189 (2018).

12 42 U.S.C. § 12182(a) (2018).

13 42 U.S.C. § 12181(7) (2018).

14 Id. (emphasis added).

15 See 42 U.S.C. § 12182 (2018).

16 42 U.S.C. § 12182(2)(A)(ii).

17 See id.

18 See 42 U.S.C. § 12182 (2018).

19 See id.

20 See U.S. Const. art. III § 2 cl. 1.

21 See Carello v. Aurora Policemen Credit Union, 930 F.3d 830, 833 (7th Cir. 2019).

22 See id.

23 See Jason P. Brown & Robert T. Quackenboss, The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019, Hunton Employment & Labor Perspectives (Jan. 3, 2019), https://www.huntonlaborblog.com/2019/01/articles/public-accommodations/muddy-waters-ada-website-compliance-may-become-less-murky-2019/.

24 42 U.S.C. § 12188(b) (2018).

25 See Jackson Lewis, supra, note 5.

26 See Minh Vu et al., 2019 Was Another Record-Breaking Year for Federal ADA Title III Lawsuits, Seyfarth Shaw LLP (Feb. 20, 2020).

27 See ADA Standards for Accessible Design, U.S. Dept. of Justice Civil Rights Division (last visited Dec. 14, 2020), https://www.ada.gov/2010ADAstandards_index.htm.

28 See 42 U.S.C. §§ 12181-12189 (2018).

29 See 42 U.S.C. § 12182(b)(2)(A)(iii) (2018).

30 Separate But Not Equal: Why separate alternate “accessible websites” are bad., Accessibility Works (Apr. 10, 2019), https://www.accessibility.works/blog/alternate-separate-accessible-websites-fail-ada/.

31 Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, U.S. Department of Justice Civil Rights Division (Dec. 7, 2012), https://www.ada.gov/anprm2010/web%20anprm_2010.htm.

32 See Nat’l Ass’n. of the Deaf v. Harvard Univ., 377 F. Supp.3d 49 (D. Mass. 2019); National Association of the Deaf v. Massachusetts Institute of Technology, 2016 WL 6652471 (D. Mass. 2016).

33 See David Raizman, Website Accessibility Regulations Delayed Again! (For At Least Three Years!!), Ogletree Deakins (Nov. 25, 2015), https://ogletree.com/insights/website-accessibility-regulations-delayed-again-for-at-least-three-years/.

34 BCLP et al., Senate Members Ask DOJ to Take Action as Number of Website Accessibility Lawsuits Continues to Rise, Bryan Cave Leighton Paisner (Aug. 13, 2019), https://retaillawbclp.com/senate-members-ask-doj-to-take-action-as-number-of-website-accessibility-lawsuits-continues-to-rise/.

35 Nicole Flynn, DOJ Withdraws ADA Compliance for Website Access Regulations, Cielo24 (Jan. 9, 2018), https://cielo24.com/2018/01/doj-withdraws-ada-compliance-for-website-access-regulations/.

36 Jorge Pacheco, The Path to Web Accessibility, Kulture Konnect (June 18, 2019), https://blog.kulturekonnect.com/the-path-to-web-accessibility.

37 See id.

38 See Brown & Quackenboss, supra note 23 (2019).

39 See id.

40 See id.

41 See H.R. 8478, 116th Cong. (2020).

42 See id. at 2.

43 See Morgan v. Joint Admin. Bd., Retirement Plan of Pillsbury Co. and American Federation of Grain Millers, AFL-CIO-CLC, 268 F3d 456, 459 (7th Cir. 2001); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D. N.Y. 2017); National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015); see National Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D. Mass. 2012).

44 See Haynes v. Dunkin’ Donuts LLC, 2018 WL 3634720, at *2 (11th Cir. 2018); Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th Cir. 2015); Peoples v. Discover Financial Services, 387 F. App’x 179, 183 (3d Cir. 2010); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997); Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1349 (S.D. Fla. 2017).

45 Access Now v. Southwest Airlines Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002) (holding that an airline website offering virtual ticket counters is not an actual physical space subject to Title III);National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) (holding that many of the benefits of the department store website were services provided by the physical stores, and that the website was effectively a “gateway to the stores,” and subject to Title III).

46 See Domino’s Pizza, LLC v. Robles, 140 S. Ct. 122 (2019) (denying petition for writ of certiorari).

47 See Carparts, 37 F.3d.

48 Carparts, 37 F.3d at 20.

49 See Weyer, 198 F.3d at 1114.

50 See id.

51 See National Ass’n of the Deaf, 869 F. Supp. 2d.

52 See id. at 201.

53 880 F. Supp. 2d 1017 (D. Cal. 2012).

54 See 2014 WL 1920751 (D. Cal. 2014).

55 See id.

56 See Gil, 242 F.Supp.3d.

57 Id. at 1316. Screen readers are software programs that allows users who are blind or visually impaired to read the text that is displayed on the computer screen with a speech synthesizer or braille display.

58 See id.

59 See id.

60 See id.

61 Scott J. Topolski, ADA Case Law and Statutory Updates, Lexology (Dec. 19, 2018), https://www.lexology.com/library/detail.aspx?g=552da43b-7175-45bb-909b-9a19bf266e58.

62 Gil v. Winn-Dixie Stores, Inc., 993 F. 3d 1266, 1277 (11th Cir. 2021).

63 Id. at 1276.

64 Id. at 1280.

65 Id.

66 Id. at 1284.

67 Id. (Jill Pryor, Circuit Judge, dissenting).

68 Id. at 1299 (Jill Pryor, Circuit Judge, dissenting).

69 Alison Frankel, 11th Circuit’s Winn-Dixie ruling deepens confusion on ADA and digital access, Reuters (Apr. 8, 2021), https://www.reuters.com/article/us-otc-ada/11th-circuits-winn-dixie-ruling-deepens-confusion-on-ada-and-digital-access-idUSKBN2BV2UU.

70 Debra Cassens Weiss, 11th Circuit decision ‘effectively closes the internet’s doors to the blind,’ plaintiff’s lawyers say, A.B.A J. (Apr. 8, 2021), https://www.abajournal.com/news/article/11th-circuit-rules-websites-are-not-public-accommodations-that-must-be-accessible-to-blind-people-under-ada?.

71 Gil, 993 F. 3d.

72 See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).

73 See id.

74 See id.

75 Id. at 905-906.

76 Id. at 911.

77 Frankel, supra note70.

78 See Domino’s Pizza, LLC v. Robles, 140 S. Ct. 122 (2019).

79 See Jancik, 2014 WL 1920751; Cullen, 880 F. Supp. 2d 1017; National Ass’n of the Deaf, 896 F. Supp 2d.

80 See W3, Web Content Accessibility Guidelines (WCAG) 2.0, (Ben Caldwell et al. eds., 2008).

81 Websites like accessibe.com provide additional resources and suggestions for businesses to ensure their websites are fully accessible to disabled individuals.

82 Lewis, supra note 5.