On February 9, 2016, Magistrate Judge Katherine Robertson issued a 45-page decision denying a motion to dismiss in National Association of the Deaf v. Harvard University, Case No. 3:15-cv-30023-MGM in the District of Massachusetts. She held that the Americans with Disabilities Act governed accessibility for materials presented by Harvard on the Internet. On March 21, Judge Bryan K. Foster of the San Bernardino Superior Court in California issued a three-page minute order granting summary judgment for the plaintiff in Davis v. BMI/BND Travelware. He found that the ADA governed a retail store’s website based on the nexus between the website and the physical store. Both decisions were widely reported in the legal press, often with headlines indicating the apocalypse is nigh. There is really less to this than the headlines suggest.
Robertson’s discussion of the ADA is based, from the outset, on the fact that this case was brought by the National Association of the Deaf with a demand that Harvard provide closed captioning for its online videos. Against this background, her argument is straightforward. She argues that:
- Harvard is a school and is therefore a place of public accommodation.
- Closed captioning is a recognized auxiliary aid or service to provide the deaf access to spoken words in video.
- The ADA prohibits public accommodations from excluding or denying services to disabled individuals “because of the absence of auxiliary aids and services.”
Notice that this argument does not mention the Internet and would apply equally to Harvard showing videos in its classrooms, or providing video content for broadcast or cable transmission. For Robertson, the Internet is merely the medium by which the video content is transmitted to the final consumer. She never addresses the important underlying question of whether the website is a public accommodation because she assumes without discussion that if Harvard owns a public accommodation (a school), then all of its public operations, including a website, are also public accommodations.
In any case, her reasoning does not lead to the conclusion that every website must be accessible to every disabled person. Closed captioning fits neatly into the definition of auxiliary aids and services because it is something added to the content delivered to the user’s browser. The same is not true of the accessibility features in a webpage required for vision-impaired or dexterity-impaired users. Accessibility is not something that is just added to existing content. Rather, accessibility means changing the structure of the code that tells the web browser how to display the content, as well as adding new code that is unrelated to the content but rather to navigation around the content. These kinds of changes don’t look very much like an “auxiliary aid or service.”
Foster’s decision is more direct and more directly on point. He simply states, without any real discussion, that because the website was owned by the owner of a physical store, it is required by the ADA to be accessible. This tracks a 2006 federal district court decision on a motion to dismiss that was never challenged on appeal because the case settled. A state court judge’s reading of federal law, even when based on a ruling in a settled case, does not have much precedential value.
So where are we after these decisions? Robertson’s lengthy opinion never addresses Internet access in general because she was concerned only with closed captioning. Foster’s very short decision tells us that in San Bernardino, the ADA governs websites. What this means in terms of actually making a website accessible is not discussed, and at present there are no federal regulations describing what website accessibility means for private businesses. These decisions are interesting, but until they make it through the appeals process they just might be flukes.
The real news is not legal, but practical. A few private firms have started filing dozens of lawsuits make claims identical to those in the Davis lawsuit. The cost of litigating such claims is likely to exceed the cost of making many smaller websites accessible, and so the real problem for business is not a significant shift in the law, but a significant shift in the litigation climate as these decisions encourage plaintiff’s firms to get into the web accessibility litigation business. It is the threat of litigation rather than actual legal requirements that will drive businesses to work on website accessibility.
Richard Hunt is a board-certified civil litigator whose practice includes litigation of cases under the ADA and the Fair Housing Act. He teaches disability law at Southern Methodist University Dedman School of Law and is the author of the Accessibility Defense blog, at accessdefense.com.
This is an updated version of a blog originally published on February 13, 2016.
The views expressed in this article are those of the author and do not necessarily represent the policy, position, or views of, and should not be attributed to, the State Bar of Texas.