A Common Misconception – A Dangerous Myth

Many small business owners are under the impression that if their business has under 15 employees they are not required to have websites that are compliant with the ADA.

Not only is that just a myth, but naive business owners can open themselves up to lawsuits for failing to have ADA compliant websites.

Title III of the ADA requires all non-exempt businesses (e.g., religious institutions and private clubs) that have publically facing physical locations, regardless of their size, to have websites that are accessible to those with visual and/or cognitive disabilities.

There seems to be a great deal of confusion as to whether or not ADA compliance is required of small businesses with less than 15 employees. This article will help provide clarification by setting forth why there is so much seemingly conflicting information on the issue and concludes with the definitive reasons that businesses that cater to the public (e.g., restaurants, retail, hospitality, etc.) are required to have ADA compliant websites.

The ADA maintains five titles (sections) whose purpose is to make American society more accessible to people with disabilities.

Title I (Employment)
Equal Employment Opportunity for Individuals with Disabilities

Title I requires covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment. Reasonable accommodation includes, for example, restructuring jobs, making work-sites and workstations accessible, modifying schedules, providing services such as interpreters, and modifying equipment and policies. Title I also regulates medical examinations and inquires.

Title I, the employment provision, applies only to businesses with 15 or more employees.

Title II (State and Local Government)
Nondiscrimination on the Basis of Disability in State and Local Government Services

Under Title II, public services (which include state and local government agencies, the National Railroad Passenger Corporation, and other commuter authorities) cannot deny services to people with disabilities or deny participation in programs or activities that are available to people without disabilities. In addition, public transportation systems, such as public transit buses, must be accessible to individuals with disabilities.

Title III (Public Accommodations)
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

Public accommodations include facilities such as restaurants, hotels, grocery stores, retail stores, etc., as well as privately owned transportation systems. Title III requires that all new construction and modifications must be accessible to individuals with disabilities. For existing facilities, barriers to services must be removed if readily achievable.

Title III, the public accomodation provision, applies to businesses of all sizes, regardless of how few or many employees the business maintains. Title III is what has been deemed by Federal Courts to require most businesses that are open to the public to have websites that are in compliance with the ADA.

Title IV (Telecommunications)

Telecommunications companies offering telephone service to the general public must have telephone relay service to individuals who use telecommunication devices for the deaf (TTYs) or similar devices.

Title V (Miscellaneous Provisions)

This title includes a provision prohibiting either (a) coercing or threatening or (b) retaliating against individuals with disabilities or those attempting to aid people with disabilities in asserting their rights under the ADA.

The confusion arises because the ADA is an Act, with each title of the ADA Act standing alone as a separate body of law. These separate provisions differ, in this context, depending on how many employees a business retains.

Title I, the employment provision, refers to discrimination in employment and who must comply.

Title III, the public accomodation provision, is about discrimination to the general public and who must comply. Accordingly, for most businessess that have publically facing physical locations, their websites must be accessible to people with disabilities and to be in compliance with the ADA.

Adirondack Website Design is committed to providing accessible websites for all of our clients and all of their users.

Additional Information

• “The 9th Circuit, however, held in its decision that the ADA applies to the company’s website and mobile app, since the law “applies to the services of a place of public accommodation, not services in a place of public accommodation.” in applying Title III of the ADA to website accessibility SCOTUS rejects pizza delivery company’s appeal over web and mobile app accessibility ABA Journal | Amanda Robers | October 7, 2019

• “Netflix contended that it was not required to provide the accommodations required by the ADA, but the federal district court for the Western District of Massachusetts disagreed. In an important ruling, the court held that the ADA indeed applies to website-only businesses.” National Association of the Deaf et al. v. Netflix, Inc. See the decision from the United States District Court for the District of Massachusets Catha Worthman, Attorney-at-Law | August 24, 2015

• “One of the main issues concerning the ADA and web accessibility is what constitutes “public accommodations.” Title III of the ADA provides regulations for private businesses and other entities to ensure access for people with disabilities within the realm of public accommodations, described as “businesses that are generally open to the public.” ADA National Network, Digital Access and Title III of the ADA Courtney Mullin, Rob Gould, Sarah Parker Harris, Department of Disability and Human Development University of Illinois at Chicago | 2020

• “You can be a place of public accommodation without having 15 employees. For example, a restaurant can fall under Title III of the ADA because it is a place of public accommodation. And, as most courts have ruled (although not all), websites are now considered places of public accommodation.” 15 Employees For ADA Website Compliance? Kris Rivenburgh, Attorney-at-Law | Founder of Accessible.org | March 13, 2020

• “All businesses that provide goods or services to the public, even small ones with only one or two employees, must comply with the ADA, including the following requirements:” ADA: Know Your Rights, Returning Service Members with Disabilities. Section entitled Customer Access, Purchasing Goods and Services: What to Expect
  U.S. Department of Justice, Civil Rights Division, Disability Rights Section

• “Is your website required to be ADA compliant even if you have fewer than 15 employees? Though many resources might tell you otherwise, the ADA can absolutely apply to you, even if you’re a small business.” 15 Employees and ADA Website Compliance Essential Accessibility | November 9, 2020