THE ADA AND WEBSITE ACCESSIBILITY POST-DOMINO'S: DETANGLING EMPLOYERS' AND BUSINESS OWNERS' WEB AND MOBILE ACCESSIBILITY OBLIGATIONS

[...]the applicability of the ADA to websites (and mobile applications) has come under intense judicial scrutiny, resulting in conflicting rulings during the past several years. Section 12181(7) does not include websites or mobile apps as "places of public accommodation." Since 1990, Congress has revised Title III of the ADA twice, but neither revision amended "place of public accommodation" to include the Internet or websites.10 Determining the definition and reach of "places of public accommodation" is, therefore, critical to assessing the rights of people with disabilities with respect to the Internet. "13 DOJ regulations define place of public accommodation consistent to those in Section 12181(7) and clarifying that a "place" is a "facility" that offers the types of services enumerated in Section 12181(7).14 Although the ADA's statutory language does not address websites, the DOJ considers websites offering goods or services to consumers to be "places of public accommodation," which must be accessible to the disabled.15 Since 1996, the DOJ has explained that it believes that "web pages" are encompassed within Title III.16 DOJ regulations require that public accommodations "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. In 2010, to provide guidance around website accessibility, the DOJ initiated rulemaking that would have resulted in technical standards for private websites and mobile applications.20 This proposed rule was not only intended to clarify the application of Title III to commercial websites,21 but also to formally adopt the Website Content Accessibility Guidelines (WCAG).22 The WCaG, developed by the non-governmental World Wide Web Consortium (W3C), sets forth voluntary technical standards that make web content more accessible to people with disabilities.23 From 2010 to 2015, the DOJ brought or intervened in many enforcement actions against commercial website operators where the settlements required compliance with WCAG 2.0 AA guidelines, leading many to believe the DOJ would formally adopt the guidelines as the governing accessibility standard.24 However, the DOJ repeatedly delayed the release of the final rule.