Employers Advised to Make Careers Websites Accessible, Despite Recent ADA Ruling

​Employers with careers websites likely must make them accessible to people with disabilities despite a recent ruling under Title III of the Americans with Disabilities Act (ADA) that a grocery retailer's website wasn't covered by the law. Title III applies to public accommodations—businesses open to the public—while Title I of the ADA covers employers.

"Title I prohibits covered employers from discriminating against qualified individuals with disabilities in employment, which includes the application and hiring process," said Michael McClory, an attorney with Cable Huston in Portland, Ore. "An employer that has a website used for hiring, training, information distribution or other aspects of employment is likely going to need to make that website accessible, to the extent that is not an undue hardship, in order to comply with its nondiscrimination obligations under ADA Title I."

In addition, many states have adopted similar rules governing website compliance, said Conner Eversole, an attorney with Hall Estill in Denver. Alabama, Arizona, Arkansas, California, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming have passed some legislation or published guidance governing website compliance, he noted.

Of those states, many have chosen to adopt Web Content Accessibility Guidelines (WCAG) standards, Eversole added.

Employers shouldn't overlook applicants with disabilities, noted Lainey Feingold, an attorney with the Law Office of Lainey Feingold in Berkeley, Calif., saying they should include a vibrant sector of the talent pool. Setting aside any legal obligations, accessibility is an essential element of organizational ethics and of diversity, equity and inclusion, she said. "And it's good for business."

Companies should talk with representatives of the disability community about the aspects of websites that present difficulties for individuals with various conditions, such as people who have visual impairments or are deaf or hard of hearing, McClory said.

Share that information to those who are designing or modifying websites and find ways to make the site more accessible, he said.

Build accessibility into a website initially rather than fixing it later, Feingold recommended.

Unclear Law Under Title III

While the decision in this case doesn't directly address an employer's responsibilities to make its website accessible to people with disabilities, the decision is of interest because there is little case law on Title I of the ADA's application to websites. ADA lawsuits related to the use of online job application portals typically have settled, said Bret Cohen, an attorney with Nelson Mullins in Boston.

Title III of the ADA's website requirements are unclear in the wake of Gil v. Winn-Dixie, a recent decision of a 11th U.S. Circuit Court of Appeals panel. The plaintiff, who is legally blind, sued Winn-Dixie after making several attempts to access Winn-Dixie's website using two different screen-reader software programs. The plaintiff concluded that most of the Winn-Dixie website was incompatible with screen-reader software.

 The appeals court ruled that a website is not a place of public accommodation and the store's website did not pose an intangible barrier to the blind plaintiff's access to the goods, services, privileges or advantages of Winn Dixie's physical stores. No goods or services could be purchased on the website, 11th Circuit noted. In addition, all interactions with Winn-Dixie that could be initiated on the website, specifically prescription pickups and redemption of coupons, had to be completed in store, said Kristina Launey, an attorney with Seyfarth in Sacramento, Calif.

On April 15, the plaintiff filed a petition for a panel rehearing and rehearing of the April 7 decision by the full 11th Circuit. The court hasn't ruled on the motion.

Noting that the decision applies only to Alabama, Georgia and Florida, Feingold said that the facts of the case were prior to the pandemic and the customer had privacy and convenience concerns. When initiating a prescription refill in the store, blind customers may have to discuss their health conditions and medication needs with pharmacists. Sighted customers could use the website and avoid verbally requesting their refills.

The retailer didn't offer any means other than its website to request prescription refills before arriving at a store, according to the dissent. A customer requesting a refill online benefitted from the pharmacist checking the insurance coverage, verifying that the prescription and refill were authorized and preparing the prescription before the customer's arrival.

Other courts have ruled differently. In Robles v. Domino's Pizza, a blind customer alleged that the pizza chain's website and mobile application were not fully accessible to him in violation of the ADA and California state law. A California federal district court granted summary judgment for Domino's, holding that the Department of Justice (DOJ) had yet to issue regulations determining whether the ADA should apply to electronic mediums such as the website and app, said Kate Gold, an attorney with Proskauer in Los Angeles.

In 2019, the 9th Circuit reversed and ruled:

• The ADA applied to Domino's website and mobile app, both of which facilitate access to delivery or pickup at Domino's brick-and-mortar location that was a public accommodation.
• Domino's received fair notice that its website and mobile app were required to comply with the ADA, and due process did not require the DOJ to issue specific guidelines. Even though the DOJ had not adopted the WCAG 2.0, the court reasoned that the plaintiff was seeking to impose liability on Domino's for failing to comply with the ADA and not for the failure to comply with WCAG 2.0.
• After the case was sent back to the district court, the district court could order compliance with WCAG 2.0 as a fair remedy if the company's website and app failed to satisfy the ADA.

The Supreme Court declined to review the 9th Circuit decision. Gold said that this left "the door open for plaintiffs to allege violations of the ADA based on website incompatibility with screen-reading software commonly used by blind and mobility-impaired users."

Although there is no legally required standard in Title III for accessibility, the prevailing industry standard is WCAG 2.1 Level AA, Launey said.

"Additionally, a new, updated version of the WCAG is expected to come out soon," said Michael Freimann, an attorney with Greenspoon Marder in Denver.