Americans with Disabilities Act (ADA)

Title I of the ADA

Covers private employers (15 or more employees)
“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a)

Can’t use qualification standards that screen out employees with disabilities unless job-related consistent with business necessity
- Requirement to use inaccessible technology = qualification standard

Have to be prepared to reasonably accommodate employees
- Work-arounds to inaccessible technology are more expensive than accessible technology

No technical accessibility standard

Title II of the ADA

Title II of the ADA covers any program, service, or activity offered by a public entity. 42 U.S.C. § 12132
- “[T]itle II applies to anything a public entity does.” 28 C.F.R. Part 35, App. A, at § 35.102
The Department of Justice “has consistently interpreted the ADA to cover websites that are operated by public entities and stated that such sites must provide their services in an accessible manner.” 28 C.F.R. Part 35, App. A, § 35.138
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132

Title II of the ADA covers any program, service, or activity offered by a public entity. 42 U.S.C. § 12132
- “[T]itle II applies to anything a public entity does.” 28 C.F.R. Part 35, App. A, at § 35.102
The Department of Justice “has consistently interpreted the ADA to cover websites that are operated by public entities and stated that such sites must provide their services in an accessible manner.” 28 C.F.R. Part 35, App. A, § 35.138
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132

Regulations mandate equal opportunity and equally effective communication:
- A public entity may not, in providing any aid, benefit, or service:
  - “[d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service[, a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others[,]” or
  - “[p]rovide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others[.]”
  - 28 C.F.R. §§ 35.130(b)(1)(i)-(iii)
- Public entities shall “take appropriate steps to ensure that communications with applicants, participants, [and] members of the public . . . with disabilities are as effective as communications with others.”
  - “to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”
  - “a public entity shall give primary consideration to the requests of individuals with disabilities”
  - 28 C.F.R. § 35.160
*New* On April 9, 2024, the DOJ issued its Final Rule governing the accessibility of web and mobile content by state and local public entities. This rule is 14 years in the making! The rule was published in the Federal Register on April 24 and becomes effective on June 24, 2024.
With very limited exceptions, the rule requires public entities to bring their web and mobile content into compliance with the Web Content Accessibility Guidelines (“WCAG”) Version 2.1, Levels A and AA.
Public entities with more than 50,000 people will have two years to comply; those with fewer, and special district governments, will have three years. But existing obligations to provide equally effective communication continue to apply in the interim.
There are five exceptions:
- Archived web content
- Preexisting conventional documents
- Limited third-party content
- Individualized, password-protected documents
- Preexisting social media posts
Rule affirms that separate is not equal; conforming alternate versions are reserved for very limited circumstances. More on the new rule here.

Defenses of undue burden and fundamental alteration remain and are included in the DOJ’s new rule:
- “This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.” 28 C.F.R. § 35.164.
Key takeaways:
- Public entity bears burden of proving defense
- Head of public entity or designee must make decision and issue written statement of reasons
- Need to consider all available resources—not just those budgeted for accessibility
- Still obligated to provide next best way to ensure equal opportunity and equally effective communication

Title III of the ADA

Title III of the ADA applies to 12 categories of private entities considered public accommodations:

Hotels (places of lodging)
Restaurants and bars
Theaters and stadiums
Auditoriums, convention centers, and lecture halls (places of public gathering)
Retail stores (grocery stores, bakeries, clothing stores, malls, etc.)
Service establishments (bank, laundromat, travel agency, law and doctors’ offices, hospitals, etc.)
Public transportation station or terminal
Museums, libraries, and galleries
Places of recreation (parks, zoos, amusement parks, etc.)
Private schools
Social service establishments (homeless shelters, day center centers, adoption agencies, etc.)
Exercise and recreation spaces (gyms, spas, bowling alleys, golf courses, etc.)

Title III requires places of public accommodation to provide individuals with disabilities an equal opportunity to use and enjoy their programs and services.

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . .” 42 U.S.C. § 12182(a).
42 U.S.C. § 12182(b)(1)(A)(i)-(iii): Provides examples of what this means: no denial of benefit/participation; no unequal benefit/service/advantage; no separate or different service/benefit unless necessary for equal effectiveness

Places of public accommodation must also:

Ensure that they are effectively communicating with individuals with disabilities.
“[D]iscrimination includes . . . a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services . . .” 42 U.S.C. § 12182(b)(2)(A)(iii)
- “auxiliary aids and services” include “qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments” 42 U.S.C. § 12103(1)(B)
Public accommodations must “ensure effective communication with individuals with disabilities. . . . In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 36.303(c)(1)

DOJ will likely work on web accessibility regulations for Title III next, now that Title II regulations are out
All agree that websites/mobile apps covered if connected to physical place of public accommodations:
“The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.” Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006).
Some stop here and limit coverage to websites/mobile apps that are sufficiently connected to a brick-and-mortar location (i.e., Domino’s Pizza website): 3^rd, 6^th, 9^th, and 11^th Circuits (nexus test)
- Reasoning: Places of public accommodation are physical structures—ADA extends to their goods and services (including those offered on the internet), but must be tied to “place”
Other circuits say that standalone websites and mobile apps are subject to Title III if they fall within one of the 12 categories of public accommodations (i.e., an online-only store—but maybe not a dating app): 1^st, 2^nd, 7^th Circuits
Reasoning:
- Travel services included on list of public accommodations—don’t need to physically enter building
- Statute often just refers to “public accommodations,” not “places of public accommodation”:
  - Title III entitled “Public Accommodations and Services Operated by Private Entities,” not “Places of Public Accommodation and Services Operated by Private Entities.”
  - Title of the section prohibiting discrimination is “Prohibition of Discrimination by Public Accommodations,” not “Prohibition of Discrimination by or in Places of Public Accommodation.”
  - The categories of private entities covered by the subchapter are listed under the heading “Public accommodation,” not “Places of public accommodation.” 42 U.S.C. § 12181(7)
Future DOJ website regs on Title III may provide guidance here
- 2000 amicus brief and 2014 Settlement with Peapod indicate DOJ’s position that Title III applies to standalone web businesses
As a practical matter for businesses, it doesn’t really matter
- No one is designing website solely for use in CA, but not for use in NY
Best practice is to make sure standalone website/mobile app complies with Title III