Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 83 82 / Venable Website Accessibility Under the ADA and Local Laws Questions to consider in assessing whether your website is covered by Title III and equivalent state or local laws include the following: • Does your website enable a consumer to make purchases? • Does your website provide coupons, a member savings or loyalty program, or a store locator? Does it link consumers to websites where they may purchase goods or services? • Does your website fit into one of the twelve categories of a “public accommodation” under Title III, or otherwise meet the definition of a “public accommodation” under state law? If you answered yes to any of the questions above, you should consider whether your website is accessible to persons with visual, auditory, dexterity, and/or mobility impairments. Nicholas M. Reiter nmreiter@Venable.com +1 212.370.6296 Karel Mazanec kmazanec@Venable.com +1 202.344.4320 Title III of the Americans with Disabilities Act prohibits discrimination based on disability by “public accommodations.” The explosion of online commerce has forced the question: Does Title III apply to websites? In a few jurisdictions, Title III applies only if the website has a nexus to an actual physical space. This “nexus” requirement is often satisfied when a website contains information about a brick-and-mortar location, such as store hours, or goods sold at a company’s store. In a growing number of other jurisdictions, Title III applies to any website offering a good or service to the public, regardless of whether there is a nexus to a physical location. The available defenses against a lawsuit vary, too. Depending upon the court in which a lawsuit is pending, some companies may be able to assert defenses to alleged website accessibility violations by establishing alternatives for disabled customers to access their goods or services, such as a toll-free, accessible hotline for disabled customers to use in lieu of inaccessible portions of the company website. Despite the different rules within different jurisdictions, one thing is clear – website accessibility lawsuits are one of the new favorite toys for the plaintiffs’ bar. Complaints under Title III and analogous state and local laws are being filed in record numbers. Companies that sell goods or provide information about physical locations through their website should examine whether their websites are accessible by hearing- impaired, vision-impaired, and other disabled persons. They should also update their accessibility policies to account for website visitors.