Are E-Commerce Sites Covered by the Americans With Disabilities Act? Retailers Ask Supreme Court to Weigh In

For the more than 7.6 million Americans that live with a visual impairment, the conveniences of the web aren’t always so convenient. Sites may be difficult or impossible to navigate, getting in the way of even simple tasks, like shopping online.

Meanwhile, businesses argue that the U.S. has yet to set out clear rules for what constitutes accessibility online, leaving many of them vulnerable to a mounting tide of lawsuits. On Tuesday, the Retail Litigation Center and the National Retail Federation asked the U.S. Supreme Court to take a case involving Domino’s Pizza and a blind customer, who sued the chain on the basis that its online ordering tools weren’t compatible with standard screen reading software.

Central to the case is the issue of whether a website is a “public accommodation” like a store or restaurant under the Americans with Disabilities Act (AFA), a 1990 civil rights law that prohibits discrimination based on disability.

“The online environment was never intended to be covered by the ADA,” said NRF senior VP and general counsel Stephanie Martz. “The ADA took effect before the internet as we know it today existed, and more than 25 years later there is no clear, objective guidance on what constitutes an ‘accessible’ website. Retailers are committed to making their websites accessible, but litigation only diverts resources and drives up costs for all consumers rather than allowing businesses to find a solution that works.”

Like Domino’s, the NRF and RLC argue that the Ninth Circuit Court of Appeals’ January ruling — which held that the Domino’s website is bound by the Americans with Disabilities Act — took the definition of “public accommodation” too far, and that the lack of comprehensive standards for accessibility makes it impossible for retailers to stay in compliance. (A set of recommended Web Content Accessibility Guidelines has been published by the World Wide Web Consortium, however the U.S. Department of Justice has never finalized guidance on the topic.)

“It is straightforward enough to measure the height of a restroom grab bar to test its ADA compliance,” the NRF wrote in a 2018 blog post. “It is far more complex to accurately measure or predict how a specific website will interact with a specific assistive technology and its user.”

Nevertheless, the issue seems to be gaining traction: website accessibility lawsuits nearly tripled last year, from 814 in 2017 to at least 2,258 in 2018, according to an analysis by the law firm Seyfarth Shaw.

User1st, a website compliance startup, recently launched a free testing tool for web accessibility called uTester. It found accessibility issues on all six of the world’s top e-commerce sites. Amazon, for instance, had 28 issues of high-medium severity, 58 low-trivial issues and more than 99 issues in hidden elements, such as a checkbox in an online form. Other problems included images that lacked text descriptions, static text that couldn’t be enlarged or made a different color and pages that couldn’t be navigated through using only a keyboard.

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