This last year alone, federal courts in Florida, California, and New York have ruled that employers that provide public accommodations, including Winn-Dixie, Five Guys, and Blick Art Materials, must make their websites accessible to disabled consumers.

Despite the fact that 19 percent of the population in the United States (or about 56.7 million Americans) have a disability, most companies do not factor in website accessibility when designing their websites and related smartphone applications. But since 2006, when Target settled a class action lawsuit in California alleging Target.com was inaccessible to the blind in violation of Title III of the Americans with Disabilities Act (ADA), the issue of whether the law applies to commercial websites is a growing concern for small and large businesses alike.

Briefly, Title III of the ADA requires accessibility for disabled persons to places of public accommodation, barring businesses from discriminating “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). Increasingly, disabled plaintiffs have argued that the ADA requires any employer that utilizes a website providing access to goods and services to make that website accessible.

However, the law remains somewhat unsettled. Federal courts are split on the threshold question of whether websites are places of public accommodation and, if they are, what steps are required to make them accessible under the ADA.

The 3rd, 9th and 11th Circuit courts that have concluded that places of public accommodation must be physical spaces have held that the goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA. See, e.g., Earll v. Ebay, Inc., 599 Fed. App’x. 695, 696 (9th Cir. 2015) (the term “place of public accommodation” requires some connection between the good or service alleged to be discriminatory and a physical place). In the Target case, the Northern District of California held that where a website is heavily integrated with physical store locations and operates as a “gateway” to the physical store locations, the website is a service of a public accommodation and is covered by the ADA. See Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 953-55 (N.D. Cal. 2006).

But the 1st, 2nd and 7th Circuit courts apply the ADA more broadly to include websites that lack any connection to a physical space. As one court within the 2nd Circuit explained, with the internet central to every aspect of the “economic and social mainstream of American life,” excluding from the ADA any business that sells services through the internet “would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 575–76 (D. Vt. 2015) (internal citation and quotation omitted).

In July 2010, the U.S. Department of Justice (DOJ) published an advance notice of proposed rulemaking seeking comment on the possibility of regulating websites as places of public accommodation under the ADA. Noting that “[i]ncreasingly, private entities are providing goods and services to the public through websites that operate as places of public accommodation,” the DOJ took the position that it was only logical to bring websites under the same regulation as physical, brick-and-mortar stores. However, since the DOJ began its rulemaking process, it has postponed issuance of final rules year after year. That said, the DOJ has filed statements of interest in numerous cases filed against employers with websites and entered into consent decrees with certain employers, including Peapod and H&R Block, using as a guide compliance standards developed by the World Wide Web Consortium called the “Web Accessibility Guidelines” or “WCAG 2.1 AA.”

While the federal courts remain split and the DOJ continues to delay the rulemaking process, employers should take a second look at their websites and mobile applications. The cases mentioned here are part of a growing trend, and while website accessibility may seem expensive, the alternative costs of litigation that may result – not to mention lost customers – are comparable.

Anat Maytal is President of the Deaf and Hard of Hearing Bar Association. She graduated from Harvard University and Boston University School of Law. She is a litigator in New York.

Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of the Deaf and Hard of Hearing Bar Association (DHHBA). This post does not constitute legal advice and does not create an attorney-client relationship with anyone. If you need to contact an attorney, please visit our Find A Lawyer page.