The Rise of ADA Title III: How Congress and the Department of Justice Can Solve Predatory Litigation

The Americans with Disabilities Act (ADA) was enacted in 1990 to afford equal opportunities for individuals with disabilities. Title III of the ADA, specifically, was enacted to afford disabled individuals equal access to places of public accommodation. When the ADA was enacted, the internet was still in its infancy and Congress did not contemplate the need for governing accessibility to websites of public accommodations. Today, the internet has become embedded in virtually every aspect of our lives, yet there are still millions of disabled individuals who are unable to equally access the websites of American businesses. With the ADA being silent on website accessibility, courts have been left to interpret whether a website is considered a “place of public accommodation,” leaving circuit courts split. While some courts have held that all websites are “public accommodations” under the ADA, other courts have interpreted “place of public accommodation” to be a physical space, requiring a website to comply with the ADA only if the website has a significant nexus to a physical space. Compounding on the circuit split is the fact that the ADA does not contain clear guidelines for what a website must do to comply with the ADA. The circuit split, together with the lack of formal standards, has fostered an extensive amount of litigation between disabled individuals and private businesses. Businesses are unaware if their website is covered by the ADA and what they would need to do to make their website comply with the ADA. This note argues that to bring an end to this litigation under Title III, Congress must amend the ADA to clearly define its scope to include all websites as places of public accommodation. Furthermore, the DOJ must provide regulatory guidance on the standards required for websites to comply with the ADA, and this note suggests a possible regulatory scheme based on the WCAG standards