There’s probably no issue of regulation on which I’ve been sounding the alarm for a longer time than on web accessibility, as it’s called. (Examples here, here, here, here, and here, among many others.) Many disabled‐rights advocates believe it should be, or already is, a violation of federal law for a business or a professional practice to post content online that is not fully accessible. That means, e.g., fitted out with video captions and action descriptions, alternative text, or alternative navigation methods for the benefit of potential users who are blind, deaf, or lacking in the fine motor skills needed to control a mouse, to name but three user groups.
The issue has big implications. The University of California, Berkeley is among institutions that have taken down free course content rather than risk liability for keeping them up without what one or another user might find to be adequate usability. Even large companies struggle with expensive and unsettled accessibility standards, while smaller users — such as mom‐and‐pop businesses with bare‐bones websites — routinely fail to provide the demanded captioning and other fixes. Lawyers have filed cookie‐cutter suits by the thousands charging all manner of businesses with lack of online accessibility, from hotel and airline reservation systems on down, and have regularly demanded thousands of dollars to drop a suit and go away. Internet law authority Eric Goldman put it bluntly nine years ago: “If websites must comply with the ADA, all hell will break loose.”
The courts, fortunately, have tended to look askance at the idea that, say, a grocery store with a less than fully accessible website is somehow the legal equivalent of a brick‐and‐mortar store that fails to build a ramp for the benefit of wheelchair users. One key issue in court has been whether an online‐only business, or a website belonging to a merchant that also provides phone ordering, should count as an “establishment.” (Again, don’t assume that all of this applies only to big‐name businesses; sole proprietors get sued, and liability could in principle extend to a website set up to publish one person’s dissenting opinions that runs on subscriptions or goes commercial in some other way, as by selling t‐shirts.)
The Equality Act, the extremely ambitious bill passed by the House in February and pending in the Senate, might well tilt the landscape in some of these debates in complainants’ favor. The Act is billed as expanding legal rights for gay, lesbian, and trans persons, and it would indeed provide lawyers with an abundance of new ways to sue in their name, in areas from housing and credit to jury service. In particular, it would extend the hand of federal control to a much wider array of “public accommodations” than are now covered — federalizing countless Main Street disputes — while also eliminating many religious exemptions and exclusions, particularly those under the Religious Freedom Restoration Act.
Beyond all that, the Equality Act contains many less‐scrutinized provisions that would expand federal civil rights laws more generally, for other protected groups, not just LGBT persons. In particular, its Section 208 would operate on the public‐accommodations provisions of the Civil Rights Act of 1964 by inserting the following “Rule of Construction”:
“A reference in this title to an establishment—
“(1) shall be construed to include an individual whose operations affect commerce and who is a provider of a good, service, or program; and
“(2) shall not be construed to be limited to a physical facility or place.”.
To put it differently, both sole proprietors and online services would be defined as public accommodations for purposes of the 1964 law.
Now, it can be argued that disabled‐rights statutes such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act stand apart from the 1964 Civil Rights Act, so nothing is being undermined except for a principle, should anyone care about that. It is equally arguable that a wide‐ranging new statement of federal policy that sole proprietors and online‐only services should not escape the full blast of public accommodations liability might sway some judges trying to decide the reach of other discrimination statutes.
Incidentally, more than 400 large corporations have seen fit to endorse the Equality Act despite its not inconsiderable encroachment on economic liberties, and that number includes several that have been sued in high‐profile cases over web accessibility.
