Litigation involving the Americans with Disabilities Act (the “ADA”) has recently focused on the ability to access websites in addition to physical locations. For example, blind and other visually-impaired people can enjoy the Internet through specialized “screen reader” software that reads text aloud to them. As that software becomes more widely available, businesses are increasingly expected to design their websites in a way that is compatible with this software. When businesses fail to do this, blind users are placed at a disadvantage. That obstacle has only become more severe in light of the coronavirus, which makes it difficult or even dangerous to visit the physical location of a business when its website is not accessible.
Because the ADA is a well-known law, most businesses are aware they must make their physical locations accessible to disabled customers. However, it is less clear how far businesses must go to make similar accommodations online. For example, last year the Supreme Court declined to step in and hear the appeal of Robles v. Domino’s Pizza, a Ninth-Circuit decision. In Robles, the court held that Domino’s had an obligation under the ADA to make its website accessible to blind users because there was a “nexus” between the site and Domino’s physical locations, and that it was no excuse that the Department of Justice has not explicitly said what a business must do for its website to comply with the ADA. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019). Because the Supreme Court did not weigh in, this area of law remains uncertain.
This is especially true in the Seventh Circuit, which oversees federal courts in much of the Midwest, including Illinois. Here, courts have not yet directly ruled on whether businesses’ websites must support screen reader software. For example, the Seventh Circuit recently had the chance to answer this question but did not do so because the plaintiff did not have standing to sue. See Carello v. Aurora Policemen Credit Union, 930 F.3d 830, 835 (7th Cir. 2019). In Carello, the plaintiff could not access a credit union’s site but was unable to sue under the ADA because he was ineligible to join that credit union. Id. at 832, 834. Accordingly, the court did not address the more substantive questions at issue.
However, the Seventh Circuit has indicated that when this issue arises, it will hold in favor of blind and visually-impaired users. For instance, in Doe v. Mutual of Omaha, the court noted the breadth of the ADA, and said it meant an owner of a “store, hotel, restaurant … Web site, or other facility (whether in physical space or electronic space) … that is open to the public cannot exclude disabled persons.” See Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); see also Morgan v. Retirement Plan of Pillsbury Co., 268 F.3d 456, 459 (7th Cir. 2001) (saying “an insurance company can no more refuse to sell a policy to a disabled person over the internet than a furniture store can refuse to sell furniture to a disabled person who enters the store”). Indeed, the Seventh Circuit appears even more favorable to disabled plaintiffs than the Ninth Circuit. While the Ninth Circuit in Robles said there must be a “nexus” between a store’s website and physical location, the Seventh Circuit in Doe
and Morgan
did not indicate that it required this, implying that even a purely web-based business must comply with the ADA.
At this point, the ADA’s scope remains hotly contested with respect to website accessibility and will remain that way until the Supreme Court or Department of Justice offers further guidance on exactly what businesses must do to comply with the ADA. For now, the Seventh Circuit’s case law continues to favor blind internet users and anyone else who requires accommodations to view a website. Moreover, would-be plaintiffs have an easier path to suing under the ADA because they can recoup their lawyers’ fees if they prevail (as can business defendants). See
42 U.S.C. § 12205.
For businesses, this means they should exercise caution in planning how to make their websites accessible to a wider audience, including those who require assistance to view websites. Conversely, blind and visually-impaired internet users have an increasingly stronger voice in making sure they can access the websites they need to, and have a tool to push businesses towards greater accessibility.
