The question of whether the WCAG applies to private companies and small businesses is a simple one. But the answer is a bit more complex. Yes, the Web Content Accessibility Guidelines (WCAG) does apply to private companies and websites. It applies to all websites, whether they’re public entities or private companies. But there is a key distinction between the WCAG and ADA (Americans with Disabilities Act). This is where the question of the law and compliance (and enforcement) comes into play.
The Difference Between the ADA and WCAG
First, it’s important to understand that the WCAG is not a law in and of itself. It is a set of guidelines that map out the requirements to make a website accessible to people with various disabilities. For example, a person may use assistive technologies, like a screen reader, to read a website aloud to them. Or a person may have colorblindness, which can sometimes result in background and foreground colors blending together. These are only a couple of many examples that can affect a person’s ability to navigate a website. So the guidelines were established to take all of these needs into account to formulate a framework for websites to follow to make their sites accessible to everyone.
The ADA, on the other hand, is the law that protects individuals with disabilities by requiring equal access to goods and services. That once meant ensuring access to brick-and-mortar businesses with wheelchair ramps or braille in elevators. Now that so much business is conducted online, the same considerations need to be applied to websites. So the ADA uses the WCAG standards to determine if a site is accessible. So, while the WCAG is not explicitly part of the ADA, it is the official guidepost and what would be used should an ADA violation claim be made against a company.
The Legal Landscape of Accessibility
In 2006, in a landmark case, the National Federation of the Blind successfully sued Target because screen readers (a tool that converts text to speech) could not navigate its website. Cases like this one clearly established that websites are an extension of a brick-and-mortar business and therefore subject to ADA requirements. Every year since, accessibility lawsuits have been on the rise (many of which are successful) claiming that an app or website cannot be used by people with disabilities. UsableNet tracks accessibility-related lawsuits and some of the statistics in their year-end report are eye-opening, to say the least:
- In 2023, over 4,600 lawsuits were filed due to accessibility claims.
- E-Commerce sites accounted for 82% of the lawsuits filed.
- 82% of the top 500 retailers have faced an accessibility lawsuit since 2018.
- 73% of lawsuits were filed against businesses making under $25m in revenue.
The biggest takeaway from these numbers is that e-commerce sites have a huge target (no pun intended) on their back when it comes to accessibility lawsuits. And since most of the largest e-commerce sites have already been sued and have made their sites accessible, plaintiffs are now going after smaller e-commerce sites.
ADA and Small Businesses
When talking about accessibility and, specifically, web accessibility, the section of the ADA that we’re referring to is Title III. Title I of the ADA (which addresses employment) makes exemptions for companies with fewer than 15 employees. But Title III makes no such exemption. The only businesses that are exempt from Title III requirements are religious organizations and private clubs. All other businesses (with very few exceptions) are subject to ADA Title III regulations.
ADA Title III Language and Implications
As noted above, when a plaintiff files a web accessibility lawsuit, the claim references a violation of Title III of the ADA. And it states the following:
- 42 U.S. Code § 12182 – Prohibition of discrimination by public accommodations:
- (a) General Rule: “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 by any person who owns, leases (or leases to), or operates a place of public accommodation.”
- (b) Specific Prohibitions:
- (2)(A)(iii): “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.”
Since a company’s website is a clear extension of the business and its operations, it is reasonable to expect that the website or app must be subject to the same above-stated requirements as the brick-and-mortar storefront. But, you may be asking, what about online-only businesses where there is no physical storefront? Does the ADA apply there? It’s a good question with a somewhat complicated answer.
Online-only Businesses and the ADA
Title III of the ADA was established to address the accessibility of a physical location. When lawsuits were filed against businesses because their website or app was not accessible, the case relied on the argument that the website/app is an extension of the physical location and therefore must provide reasonable accommodation to all.
Robles v. Domino’s Pizza, LLC
This 2019 case filed in California indirectly tackled the online-only question. The Ninth Circuit ruled that websites and mobile apps must be accessible if there is a sufficient connection between the site or app and a physical location. While it did not explicitly address the question of whether online-only businesses would be subject to ADA Title III violations, one could infer from the ruling that they would not. Following this ruling, there has been a noticeable decline in accessibility lawsuits filed in California.
Panarra v. HTC
In 2020, a deaf man sued the HTC Corporation because their VR platform did not include captioning. HTC argued that they are not subject to Title III of the ADA, but the judge ultimately rejected the argument in his ruling. HTC continued to appeal the ruling, but ultimately settled last year. This case was a landmark ruling on the issue, finding that a business without a physical location could be subject to ADA Title III regulations.
Murphy v. Spongellé LLC
In February 2024, a ruling out of the Western District of Pennsylvania came to the opposite conclusion. It determined that if a business does not have a physical location that is open to the public, then it can’t be subject to ADA Title III protections.
In the handful of cases addressing this specific issue, different district courts have come to different conclusions. The Supreme Court declined to address this question when they faced a lawsuit against the Dominos and their app. So, as things stand right now, there is no federal law addressing the ADA and online-only businesses. For the time-being, it will be up to the District Courts to decide.
The Department of Justice Rule on Accessibility
In April 2024, the DOJ issued a final rule on accessibility requirements for public entities. This rule states that public entities must comply with WCAG 2.1 Level AA standards. While this ruling primarily addresses public entities (state and local government websites, etc.), it also states that if a public entity contracts with a private business to provide a service (such as an app creator), the private business is subject to this same rule. This could potentially open the door to federal legislation on web and app accessibility laws for all entities, both public and private.
In Closing
Both the WCAG and ADA do apply to private and small businesses (though very few exceptions do exist). And accessibility violation claims are easy to prove, so lawyers would likely be happy to take one of these cases. Small business owners might feel that they can’t afford the cost to make their sites WCAG compliant. But given the risk of a potential lawsuit, can you really afford not to?
