Does Every Website Need to Be ADA Compliant / Accessible in 2023?
(Updated for 2023)
Per the DOJ’s Guidance on Web Accessibility:
Businesses open to the public. Public accommodations.
Title III prohibits discrimination against people with disabilities by businesses open to the public (also referred to as “public accommodations” under the ADA). The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities.
All goods, services, privileges, or activities offered by public accommodations.
For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
So the DOJ’s stance is the ADA applies to businesses open to the public or “public accommodations” and all goods, services, privileges, or activities offered by public accommodations must be accessible.
Futhermore, although the law has been interpreted and applied unevenly by different courts, we do know that courts have generally held that the ADA applies to websites.
As such, if your website falls under any of the bullets listed below, it is likely to be subject to the Americans with Disabilities Act (ADA).
What Websites are Required to be ADA Compliant?
- Websites connected to places of public accommodation
- Websites that are considered places of public accommodation
- Websites that are commercial in nature (sells goods or services)
- Websites open to and intended for the general public
The present reality is there is no clearcut answer in the law for private entities and there are certainly technical exceptions and examptions. However, plaintiffs’ law firms currently dictate whether website accessibility under various anti-discrimination laws is enforced via private litigation.
And the plaintiffs’ lawyers position is that the ADA does apply to websites, generally.
Let’s briefly look at the 12 categories that the ADA considers to be places of public accommodation.
What are Places of Public Accomodation?
Since courts have regularly ruled that websites are considered places of public accommodation, under Title III of the ADA, accessibility is / should be only mandatory for websites that affect interstate commerce and fit under 12 listed categories:
A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
B) a restaurant, bar, or other establishment serving food or drink;
C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;
D) an auditorium, convention center, lecture hall, or other place of public gathering;
E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
G) a terminal, depot, or other station used for specified public transportation;
H) a museum, library, gallery, or other place of public display or collection;
I) a park, zoo, amusement park, or other place of recreation;
J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
But it’s important to remember that, in a way, plaintiffs’ law firms are the ones dictating enforcement because they’re the ones deciding who to send demand letters to.
And, since you’re highly unlikely to get in a technical legal battle in court, the practical result is if you have a website, it’s best to make it accessible.
Risk of Litigation
Now, are some website owners highly unlikely to ever receive an “ADA Website” demand letter or complaint?
If you write a gardening blog on Tumblr where you pontificate whether you’re planting daffodils in your backyard, there’s a 99.9999% chance you won’t merit the time and attention of a plaintiffs’ law firm.
But the more commercial in nature your website is, the more you become a target for serial plaintiffs.
If your website is connected to a physical location, there’s a very strong chance the ADA would be interpreted to apply to you.
If your operations are only web-based, the ADA and other anti-discrimination laws (e.g., New York State/City Human Rights Law) can still apply to you. Online-only businesses such as Shopify stores are still routinely subject to litigation.
Although not all courts agree on how and whether broad anti-discrimination laws apply to websites, plaintiffs’ law firms have adapted their approaches to litigation.
One example is many lawyers have switched from filing in federal court to state court. Another example is changing or combining the laws used as causes of action.
You originally wondered whether your website needs to be ADA compliant, but the better question is how likely are you to receive a demand letter?
Again, if you have a physical location (e.g., restaurant, hotel, bank, gym, museum, etc.), you need to have an accessible web presence.
If your website consists of commercial activity; if you’re selling products or services or financial transactions are taking place on your website, then a strong argument can be made that your website must be accessible.
From there, it’s a sliding scale of your risk.
For example, maybe you’re an independent contractor like an architect who has an informational website complete with blog and contact information.
This type of website would be far less likely to receive a demand letter than a bank but it’s not inconceivable that a plaintiffs’ law firm would send a demand letter.
The primary reason I say that every website needs to be accessible is because there is no definitive digital accessibility law for private entities in the United States.
Instead, the prevailing law has been a running ledger of what feels right based on the spirit of the ADA.
Plaintiffs’ law firms have taken advantage of the ambiguity and cobble together claims of disability discrimination that appear legitimate — and not like a pure money grab — at first blush.
Of course, 98% of these lawsuits ultimately are only for money and not for accessibility, but it’s the result and not the motive that is most important in preventing litigation.
Maybe, technically, your website isn’t a “place of public accommodation” but it’s a moot point because plaintiffs’ lawyers don’t mind sending you a demand letter to test the waters.
Once you receive that demand letter, it’s going to be more efficient for you to settle with them for several thousand less than it would cost you to have a defense attorney (very possibly an out of state attorney if you’re not in New York, California, or Florida) litigate the case.
Beyond the legal requirements, accessibility is highly beneficial in that everyone can better engage with your website.
So what should you do now?
Start with my ADA Website Compliance article and then read The ADA Book to better understand the legal and technical aspects to website accessibility.
This will provide an excellent overview on the current landscape and give you a clear idea of how to best proceed in making your website accessible.
The primary two actions website owners need to take are:
- Audit your website
- Remediate your website
An audit identifies all of the accessibility issues found on your website.
Remediation is the fixing of all of the issues found in the audit to make your website accessible.
My YouTube channel @adabook covers website accessibility / ADA compliance FAQ.