When President George W. Bush signed the Americans with Disabilities Act (ADA) in 1990, a new era of civil rights for the disabled was born. New buildings were required to be handicap accessible and discrimination against the disabled was banned. And as of 2021, it also means websites must be ADA-compliant.
But not all websites are bound by the ADA, only those considered a ‘place of public accommodation,’ according to the U.S. Department of Justice (DOJ).
Cannabis e-commerce sites fall into this category and retailers could face stiff penalties if found non-compliant.
What is a Place of Public Accommodation?
On March 18, the DOJ issued updated promulgations on website accessibility based on the ADA. The ADA’s requirements apply to all goods, services, privileges, or other activities offered by public accommodations, including those offered on the web,” the DOJ stated in the guidelines.”
According to Indianapolis attorney Brett J. Ashton, many courts across the U.S. did not wait for the DOJ to issue its March 2022 guidelines to determine what constitutes a public accommodation.
Some ruled an actual storefront is required for a business and its website to be defined as a public accommodation. Others continue to grapple with the nexus between a business’s physical space and its website.
Meanwhile, the DOJ has issued comments which seem to indicate its hesitancy to shield commercial websites sans a brick-and-mortar location from discrimination liabilities.
In other words, not having a physical location does not mean a commercial website need not meet ADA standards.
“If a business sells a product on its website, it’s a public accommodation, so the ADA applies,” said Attorney Jeff Lantz, CEO of Esquire Interactive, LLC, a social media and content creation venture.
An ADA Primer
The ADA is a civil rights law prohibiting all forms of discrimination against the disabled. It is divided into five sections, called Titles. Each Title prohibits discrimination against the disabled in different aspects of their lives. The Titles and their areas of focus are:
Title I: Employment
Title II: State and Local Government
Title III: Public Accommodations and Commercial Facilities
Title IV: Telecommunications
Title V: Miscellaneous Provisions
Title III states “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.”
Furthermore, the Title prohibits any person owning, leasing, or renting a public accommodation to a third party from discriminating against the disabled.
When the ADA was enacted, it failed to clearly state the guidelines for handicap accessibility. The DOJ published the 2010 ADA Standards for Accessible Design to correct that. The standards led to revisions of Titles II and III, which went into effect in 2012.
Seeking additional clarification, 181 businesses petitioned the DOJ for guidelines delineating how to make websites ADA-accessible in February 2022. The DOJ responded by publishing new guidelines on website accessibility on March 18, 2022.
Still, bemoans Lantz, those promulgations don’t go far enough.
One thing that was made clear is that businesses must “follow all laws and regulations, including the ADA,” he said.
He lamented, however, “It is nebulous what it means to be ADA-compliant due to recent case [law] results and vague DOJ guidelines.”
How to Know if Your Website is a ‘Go’
Fortunately, there are ways to analyze whether a commercial website is ADA-accessible.
An excellent place to start is the Web Accessibility Initiative. The initiative, supported by the World Wide Web Consortium (W3C), develops standards and support materials designed to assist people in making websites more accessible.
Also imperative is a perusal of the Web Content Accessibility Guidelines (WCAG). These technical promulgations, published by the Web Accessibility Initiative, detail how to make websites ADA-compliant. The WCAG pertains to websites, phone apps, and other digital content.
The three levels of ADA-website compliance are:
A: Minimal compliance
AA: Includes all Level A and Level AA requirements. Most companies aim for compliance on this level
AAA: Includes all Level A, AA, and AA requirements and is the strictest level of conformity. Few businesses strive to meet this standard
Level A conformance does not generally offer broad accessibility while Level AA offers a mid-range level. The most notable Level AA requirements include:
1. Captions (for live audio and video)
2. Consistent navigation elements site-wide
3. Color contrast, at least 4.5:1
4. The ability for status updates to be conveyed through a screen reader
Several free websites diagnose website accessibility, usually for free. A quick search of the web will reveal numerous options.
Why ADA Compliance Matters
There are several reasons why a cannabis entity’s website should be ADA-compatible.
For starters, it’s the law.
Beyond that, an accessible website is a “good policy that is consumer-focused. Individuals eligible for medical marijuana will have underlying medical conditions.
“So, even without the law, it’s a best practice to modify a website to accommodate patients with various medical and physical issues,” said Columbus lawyer Chad Blackham.
Blackham also noted that in our post-pandemic world, where remote working is a growing trend, adapting a website so it can be used by anyone is “an adaptation to post-COVID life.”
According to David M. Benson, a bankruptcy attorney in Cleveland, since cannabis is still illegal federally, a marijuana company racking up sizable legal fees defending ADA-website litigation is barred from filing bankruptcy.
“I can’t help you,” he said.
Cannabis entrepreneurs are especially vulnerable to ADA-website compliance complaints because they already face a complicated web of state and federal promulgations, opined Blackham.
Ashton noted an uptick in ADA-website compliance cases filed over the past few years. “Three years ago, I might have told a client to ignore those letters (complaining about website compliance) but now, we respond to the demand letter. In the past few months, more complaints have been filed.”
“There’s a large incentive for Plaintiffs to pursue these cases, and 99% settle” Blackham added.
Most lawsuits alleging a failure to meet ADA-website compliance laws seek less than $100,000 in damages to keep the case out of Federal Court. Ashton also said he often counsels insurance companies to settle rather than litigate because “the legal fees are not worth the money. Unless it’s in Federal Court and you’re suing a five-billion-dollar bank.”
Plaintiffs “want a quick recovery,” Ashton said.
