BeyoncADA

Let’s talk about Beyoncé Giselle Knowles-Carter. Beyoncé. Queen Bey. Sasha Fierce. I don’t want to talk about her excellent 2016 album Lemonade. Nor do I want to talk about Homecoming, her Netflix special, which I can only assume (because Netflix does not release viewership data), has been watched by everyone on earth at least twice. I don’t even want to talk about her role as Nala in Disney’s remake of The Lion King.

No. I want to talk about Beyonce.com, Beyoncé’s official website. Recently, a Beyoncé fan sued the singer—or more specifically her website—alleging that the fan could not buy tickets to a Beyoncé show on the website because she was visually impaired and there was no way for her to navigate the site. To understand how a lawsuit against Beyoncé affects you, we need to go back in time—all the way to 1990.

The Americans with Disabilities Act was signed into law in 1990. The ADA prohibits discrimination against individuals with disabilities. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. As you might imagine, many components of the law ensure that laudable goal is achieved. Some sections of the ADA are designed to help people with disabilities access the same employment opportunities and benefits available to people without disabilities. Others ensure that those with disabilities have the same access to state and local government services as those without disabilities. However, Title III of the ADA is the focus of this article.

Public accommodations

Title III prohibits private places of public accommodation from discriminating against individuals with disabilities. In other words, under Title III, private businesses are required to make their facilities accessible to those with disabilities. The natural question: What exactly is a public accommodation? The ADA defines public accommodation as a private entity that owns, leases (or leases to), or operates a place of public accommodation.[1] You might notice that the definition of public accommodation uses the words “public accommodation” in its definition. As a rule, this is extremely unhelpful.

Fortunately, there is more guidance in the ADA Title III Technical Assistance Manual. That manual further defines public accommodation as a facility where operations affect commerce and fall within at least one of the 12 categories. Those categories include:

• places of lodging;
• establishments serving food or drink;
• places of exhibition or entertainment;
• places of public gathering;
• sales or rental establishments;
• service establishments (insurance offices are mentioned specifically under this category);
• public transportation terminals, depots or stations;
• places of public display or collection;
• places of recreation;
• places of education;
• social service center establishments; and
• places of exercise or recreation.[2]

A facility cannot be considered a public accommodation if it does not fall under one of these categories, but good luck finding a business that doesn’t.

So, how does Title III of the ADA relate to Beyoncé’s website? Because websites also are considered public accommodations under Title III, at least according to several federal appellate courts and the U.S. Department of Justice (usually a good authority when determining what the law is).

While there is some disagreement among courts as to whether an online-only entity would be considered a public accommodation, the consensus seems to be that the prohibition on discrimination is not limited to tangible barriers, such as stairs or narrow bathroom stalls, which disabled persons face, but can extend to intangible barriers as well.

Interesting side note on businesses that exist purely online—the Seventh Circuit in the case of Morgan v. Joint Administration Board, Retirement Plan of the Pillsbury Co., used insurance when rejecting the notion that a public accommodation is limited to a physical site. The court held that: “An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store.”[3] (Side note to the side note: The decision in Morgan was written by Judge Richard Posner, one of my all-time favorite circuit court judges.)

All right, websites are public accommodations, but why do we care? Because it isn’t just Queen Bey who is being sued. By some estimates, ADA Title III website accessibility lawsuits increased by 177% in 2018—with more than
2,250 being filed.[4] More locally, PIA has seen an increase in member calls on this topic. Some members have stated that clients have been sued and members have told us that they are being sued.

ADA compliance?

The question then is, how can you prevent a lawsuit? In other words, how do you make your website ADA compliant? Unfortunately, there is not a clear answer to this question. There are clear standards for what tangible public accommodations must do to be compliant with the ADA, but the U.S. DOJ has yet to issue any guidelines for websites. In fact, the U.S. DOJ specifically has refused to issue any guidance on this topic. Where does that leave us? In the absence of guidance from the government, we can turn to accepted practices.

On June 20, 2018, 103 members of the U.S. House of Representatives signed a letter sent to then-Attorney General Jeff Sessions requesting the U.S. DOJ take steps to set minimum web accessibility standards. That letter referenced the adoption of WCAG 2.0 guidelines. While the U.S. DOJ refused to adopt these guidelines, they are probably the best we have right now.

WCAG standards

Web Content Accessibility Guidelines, or WCAG, are guidelines developed by the Accessibility Guidelines Working Group, which is part of the World Wide Web Consortium Web Accessibility Initiative. The W3C describes itself as an international community that develops open standards to ensure the long-term growth of the web.

The WCAG are organized around four principles, which are necessary to ensure anyone can access and use a website. First, information and user interface components must be presentable to users in ways they can perceive. This would include having captions for any video or audio content on your website or having audio descriptions for any video content. It also could include making sure your website is viewable and operable in multiple display orientations (i.e., portrait vs. landscape).

Second, websites also must be operable. Users must be able to operate the website interface and conversely the website interface cannot require interaction that a user cannot perform. This could mean that the website is operable through a keyboard interface instead of just through use of a mouse or that certain functions on your website do not time out.

Third, the website must be understandable. Users must be able to understand the information as well as the operation of the user interface (e.g., having a mechanism available to identify specific definitions of words or phrases used in an unusual or restricted way; identifying the meaning of abbreviations; or identifying and describing errors input by the user).

Finally, the website must be robust. The content must be robust enough that it can be interpreted reliably by a wide variety of users. This would include assistive technologies deployed by the user. For example, if a status message on your website conveys a suggestion, or a warning on the existence of an error, the warning must be readable or understandable to assistive technologies.

This is by no means an exhaustive list, so look at the complete WCAG 2.1 standards (https://bit.ly/2xQy3SM).

PIA can help

These requirements may seem like just another instance of the government telling businesses what to do. But remember, these requirements are not only designed to ensure that those with disabilities have the same access as everyone else—a noble goal in and of itself—but it can give you a competitive advantage by ensuring that your website and the services you offer are available to everyone. The Centers for Disease Control and Prevention estimate that 61 million Americans live with some sort of disability.[5] And, the American Institutes for Research estimates that the total after-tax disposable income for working-age people with disabilities is about $490 billion.[6] So, being compliant also can help your agency’s bottom line.

If you need help with compliance, PIA is here to help. Contact PIA’s Industry Resource Center at resourcecenter@pia.org or (800) 424-4244. Remember, to paraphrase Beyoncé … they don’t love you, like PIA loves you.

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[1] Americans with Disabilities Act Title III Regulations, 2017 (bit.ly/2Lm9C8r)

[2] Americans with Disabilities Act ADA Title III Technical Assistance Manual (bit.ly/2Sjxvhr)

[3] Morgan v. Joint Administration Board, Retirement Plan of the Pillsbury Co., 2001 (bit.ly/2xQf6iU)

[4] Seyfarth Shaw, 2019 (bit.ly/2DAmRvR)

[5] Centers for Disease Control and Prevention, 2019 (bit.ly/2qAAM1f)

[6] American Institutes for Research, 2018 (bit.ly/2q7bfKs)