Does the Americans with Disabilities Act Apply to Your Website?

Most club operators are familiar with the requirements set by the Americans with Disabilities Act (ADA), which ensures clubs are accessible to people with disabilities. Title III of the ADA prohibits discrimination on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation, including health clubs. What is coming as a very unpleasant shock to an increasing number of businesses—including health club operators—is that the ADA also applies to a business’ website.

You could say the ADA began extending requirements to websites of clubs—and all public accommodations—in 2006-2007 when the Department of Justice expanded accessibility requirements to government websites and published a Best Practices Toolkit for State and Local Governments. This toolkit included a checklist designed for use in conducting a preliminary assessment for accessibility for government agency websites.

However, it is only in the last few years that plaintiffs’ attorneys representing people with disabilities started filing public accommodations lawsuits claiming that businesses’ websites are not accessible to people with disabilities. The law firm Seyfarth Shaw reported that, “Plaintiffs filed 4965 federal ADA Title III lawsuits in just the first six months of 2018.” Action at the state level during the same time period was just as busy, further reporting that, “New York (1026 lawsuits) has overtaken Florida (882 lawsuits) for the honor of having the second highest number of ADA Title III lawsuits, with California (2155 lawsuits) retaining its number one position as the most busy jurisdiction for ADA Title III filings.”

Health clubs are not exempt from this lawsuit frenzy and are finding themselves facing disability groups over their website’s accessibility.

What Should Clubs Do to Avoid ADA-related Litigation?

Right now things remain in chaos. There is no clear guidance from the federal government and contradictory lower court findings. Businesses hoped that the expected guidelines from the Department of Justice would help the situation. But in the fall of 2018, in a letter to Congressman Ted Budd, the Department of Justice stated that they will not be issuing any guidelines for businesses on meeting compliance, but did state that websites of public accommodations must meet Title III of the ADA saying, “the Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago.”

As a result of two cases heard at the federal appellate court level, businesses may soon have additional guidance from the federal level. In October 2018, oral arguments were heard in the 11th Circuit case Gil v. Winn-Dixie, and the 9th Circuit case Robles vs. Domino’s Pizza. In both cases, plaintiffs with a disability sued under ADA Title III alleging that the businesses—as public accommodations—are required to make their websites accessible for individuals with a disability. Unfortunately, although guidance may be in sight, the decisions are not expected for 6 to 12 months.

What Is an Accessible Website and How Much Does It Cost to Have One?

Accessible websites allow individuals who are visually impaired or have a reduced ability to hear to use your site with assistive technologies. In the article “10 Ways to Make Your Website Accessible” their list of assistive technologies include “screen readers that vocalize the text on each page, speech recognition software that converts speech into text, Braille terminals, and even alternative keyboards that accommodate special needs.”

The cost of making your website accessible varies. In an LA Times story, a hotel operator estimated that it would cost $3,000 to make their website accessible. Others estimate the cost for small-to-medium-size businesses to be between $27,000 and $50,000.

So, What Is a Club Supposed to Do in the Meantime?

When it comes to complying with the ADA, effort does count. It is essential to show that you are taking steps to make your website accessible. Start by reviewing your site to see if it is accessible. AChecker and SortSite are two common services that you can use. One club scans its website every three weeks to ensure that the site is always compliant and keeps the records of the scans and corrective action taken to protect against being threatened with a lawsuit.

In lieu of federal guidance, a good place to start is with the rules the DOJ created for state and federal agencies. Have your IT staff or consultants review the ADA Best Practices Tool Kit for State and Local Governments Website Accessibility Checklist.

Another place to make sure your web designers are looking is the W3C Web Accessibility Initiative Website. W3C has developed website accessibility standards/guidelines that were sighted by the lower court decision against Winn-Dixie, which is now on appeal in Federal District Court as referenced above. The site also contains useful tools for things like creating an accessibility statement for your website.

Protecting your club against an ADA website accessibility suit starts with knowledge of the issue and directing your IT staff and web developers to move your club toward accessibility. As this emerging area of law continues to develop, you can count on IHRSA to keep you informed.