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"In this article, Bradley J. Muldrow, JD discusses a recent court ruling requiring many businesses to make their websites ADA-compliant and how that ruling applies to therapists."
by Bradley J. Muldrow
Discussions about Americans with Disabilities Act (“ADA”) compliance often center on ensuring that one’s physical place of business is accessible to people with disabilities. However, a recent ruling from the Ninth Circuit Court of Appeal requires places of public accommodation, including most therapy private practices, nonprofit counseling centers, etc., to ensure that their websites and other online services are accessible to people with disabilities as well. This article will provide information and guidance for navigating this new compliance requirement.
Note: This article addresses ADA regulations applicable to privately owned entities such as private practices, nonprofits, privately-owned rehabilitation centers, etc. Public entities, such as public schools, agencies, and hospitals, are subject to a different set of ADA standards.
Therapists’ Offices Are “Places of Public Accommodation” Subject to ADA Regulation
Privately owned therapy offices (e.g. private practices, nonprofit counseling centers, and other non-government-owned entities offering therapy services) constitute “places of public accommodation,” or “public accommodations,” subject to the regulations set forth in Title III of the ADA. This section of the ADA includes a provision that prohibits individuals who own, operate, or lease public accommodations from denying people with disabilities “full and equal enjoyment” of the public accommodations’ goods, services, and other benefits. Moreover, as this article will discuss, the Ninth Circuit Court of Appeals recently clarified that public accommodations must also ensure that their websites and other online services are accessible to people with disabilities. For further reading on ADA compliance generally, read: Breaking Down Barriers to Care.
Robles v. Domino’s (2018)
In Robles v. Domino's Pizza, LLC, a blind man named Guillermo Robles sued Domino’s Pizza (“Domino’s”), alleging that the restaurant’s website and mobile application were in violation of the ADA. Robles claimed that these online services were not accessible to Domino’s patrons with visual disabilities because the services were not compatible with screen-reading technology that verbalizes information displayed on websites and other online platforms for people who cannot receive this information visually. Domino’s website and app allow customers to place pick-up and delivery food orders which are completed by individual Domino’s franchises. The website and app also offer exclusive discounts to users.
The Ninth Circuit Court of Appeals addressed the issue of whether the websites and other online services of public accommodations, such as Domino’s, are subject to ADA regulation. The court held that the ADA requires public accommodations to make their websites and other online services accessible to people with disabilities if the online services connect people to the public accommodations’ goods, services, and other privileges. Applying this ADA principle to Domino’s website and app, the court held that these online services must be accessible to people with disabilities because they “facilitate access to the goods and services of Domino's physical restaurants.” This past October, the Supreme Court of the United States declined to hear Domino’s appeal of the Ninth Circuit’s ruling. Accordingly, the Robles decision is officially the law of the land in California and the rest of the Ninth Circuit. Before discussing how privately-owned therapy offices can bring their websites into compliance with the ADA, it is important to identify which privately-owned therapy offices must comply with the Robles decision.
Which Privately-Owned Therapy Offices Must Ensure That Their Websites Are ADA-Compliant?
Pursuant to the Robles decision, Title III of the ADA requires those who own, operate, or lease privately-owned therapy offices to ensure that their websites are accessible to people with disabilities if the websites facilitate access to the offices’ in-person therapy services. For example, the website of a private practice, nonprofit counseling center, or other privately owned therapy office would have to adhere to ADA accessibility regulations if the website:
Which Privately Owned Therapy Offices DO NOT Have to Ensure That Their Websites Are ADA-Compliant?
The Robles decision clarifies that public accommodations must ensure that their websites are accessible to people with disabilities if their websites facilitate access to the public accommodations’ goods and services. However, businesses and other entities that exclusively offer online services (e.g. Netflix, eBay, etc.) do not constitute public accommodations because the goods and services they offer are not connected to physical sites. Accordingly, Title III of the ADA does not regulate these entities.
Pursuant to this principle, privately-owned therapy practices that exclusively offer services via telehealth and do not provide any in-person therapy services do not constitute public accommodations. Therefore, these businesses, as well as their websites, are not subject to the accessibility requirements of Title III of the ADA or the Robles ruling. However, all therapists should be mindful of CAMFT Code of Ethics Rule 1.1 which prohibits discrimination against people with disabilities. This rule also requires therapists to “make reasonable efforts to accommodate clients/patients who have physical disabilities.” Furthermore, Business and Professions Code Section 125.6 provides that the BBS may take disciplinary action against therapists who discriminate against people with disabilities and other groups protected under the Unruh Civil Rights Act.
Accessibility: The Key to an ADA-Compliant Website
Accessibility is the key to ADA compliance. This principle is as true for public accommodations’ websites as it is for their physical facilities. For therapists to bring their websites into compliance with the ADA, they must ensure that their websites are “freely and equally” usable to patients and prospective patients with disabilities. For example, if a private practice’s website offers a two-minute video describing the practice’s services, the practice may need to add subtitles to the video or a transcript below the video so that Deaf/HH people can understand the information it provides. Similarly, an MFT professional corporation may need to ensure that all text and other information provided on its website is compatible with screen-reading technology so that people with visual disabilities can access the site.
Best Practice: Ensure That Your Website Complies with the WCAG 2.0
The ADA itself does not provide specific technical standards that websites and other online services must meet to be considered “accessible” or “ADA-compliant.” However, the safest way for therapists to avoid liability for website noncompliance is to ensure that their websites comply with the Web Content Accessibility Guidelines 2.0 (the “WCAG 2.0”).
Although the ADA does not explicitly require websites of public accommodations to meet WCAG 2.0 standards, in practice these standards are commonly used to determine whether websites and online services are ADA-compliant. For instance, when the U.S. Department of Justice (the “DOJ”) enters into settlement agreements with defendants in lawsuits involving website accessibility issues, the DOJ requires defendants to conform their websites to WCAG 2.0 standards. Similarly, plaintiffs in litigation involving website accessibility often ask courts to require public accommodations’ websites to meet WCAG 2.0 standards as part of the damages they seek. By preemptively ensuring that their websites meet WCAG 2.0 standards, therapists can make their services available to a larger pool of potential clients and secure the strongest possible defense against potential website accessibility lawsuits.
Understanding the WCAG 2.0
The WCAG 2.0 provides web design standards, or guidelines, intended to make websites more accessible to people with disabilities. To illustrate, here are some of the WCAG 2.0 guidelines:
Guideline 1.1 Text Alternatives: Provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language.
Guideline 2.1Keyboard Accessible: Make all [website] functionality available from a keyboard.
Guideline 2.3 Seizures: Do not design content in a way that is known to cause seizures.
Guideline 2.4 Navigable: Provide ways to help users navigate, find content, and determine where they are.
Guideline 3.1 Readable: Make text content readable and understandable.
There are three levels of WCAG 2.0 compliance,
Websites must meet specific success criteria to progress from level A to level AAA. In ADA litigation involving website accessibility, plaintiffs and the DOJ typically seek to require defendants to conform their websites and other online services to WCAG 2.0 level AA. Accordingly, to reduce their risk of liability, therapists who own, operate, or lease private practices, nonprofit counseling centers, and other public accommodations should work with web design specialists to conform their websites to WCAG 2.0 AA standards.
Looking Forward: The WCAG 2.1
In 2018, the World Wide Web Consortium released the Web Content Accessibility Guidelines 2.1 (the “WCAG 2.1”). These updated standards were created “to improve accessibility guidance for three major groups: users with cognitive or learning disabilities, users with low vision, and users with disabilities on mobile devices.” However, the WCAG 2.1 builds on, and is backwards compatible with the standards of the WCAG 2.0. In other words, if a website complies with the WCAG 2.1 it also complies with the WCAG 2.0.
It is currently not necessary for therapists to conform their websites to WCAG 2.1 standards. However, in the future, plaintiffs and the DOJ may shift towards seeking WCAG 2.1 conformance as a remedy in website accessibility cases. Accordingly, therapists may wish to consider conforming their websites to WCAG 2.1 AA standards. Note: As discussed above, websites that meet WCAG 2.1 AA standards automatically meet WCAG 2.0 AA standards.
1See the WCAG 2.0 Guidelines: https://www.w3.org/TR/WCAG20/#contents
2See the WCAG 2.1 Guidelines: https://www.w3.org/TR/WCAG21/#background-on-wcag-2
To ensure that individuals of all backgrounds can benefit from the vital mental health services therapists provide, therapists’ websites must be accessible to people with disabilities. Therapists can accomplish this goal and satisfy the ADA compliance responsibilities set forth in the Robles decision by conforming their websites to WCAG 2.0 AA standards. Given the level of technical skill and knowledge that is often required to redesign websites, therapists should strongly consider consulting with web design specialists familiar with the WCAG 2.0 when updating their websites.
Brad Muldrow, JD, is a staff attorney for CAMFT. He also serves as a member of Disability Interest Group (“DIG”), a San Diego County Bar Association subcommittee dedicated to promoting the interests of people with disabilities in the legal field. Brad is available to answer member calls regarding legal, ethical, and licensure issues.
1The offices of therapists and other healthcare providers are places of public accommodation subject to the regulations of Title III of the ADA when: (1) the offices are privately owned, and (2) affect commerce. (42 U.S.C. § 12181(7)(F).) If a therapist provides therapy, or other goods or services, to individuals from a privately owned entity, that entity inherently affects commerce regardless of the therapist’s individual practices (See e.g. Pinnock v. International House of Pancakes Franchisee (S.D. Cal. 1993) 844 F.Supp. 574, 579 stating “…regardless of [Majid Zahedi, owner of a restaurant franchise]’s individual circumstances, he is subject to Commerce Clause regulation as a member of the restaurant industry.”)
242 U.S.C. § 12182(a)
3Robles v. Domino's Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 902
6Id. at 905
7Robles, 913 F.3d at 905
8Domino's Pizza, LLC v. Robles (2019) 140 S.Ct. 122
9See Cullen v. Netflix, Inc. (9th Cir. 2015) 600 Fed.Appx. 508, 509 and Earll v. eBay, Inc. (9th Cir. 2015) 599 Fed.Appx. 695, 696 holding that Netflix and eBay are not subject to ADA regulation because the goods and services they offer are not connected to physical sites.
10The WCAG 2.0 is a series of website accessibility standards developed by experts affiliated with an organization known as the World Wide Web Consortium.