Lynn Kappelman and Ina Silvergleid Published in Employment Law360

On March 24, Lynn Kappelman and Ina Silvergleid's article " Are private Web Sites Covered By ADA Title III ?" was the featured Guest Column in Employment Law360.  Their article highlights important topic: do websites need to be accessible to the blind?  The article reviews the current state of the law on this question and advises businesses as to what measures they may wish to take to avoid being the target of a Title III discrimination lawsuit.  Recent litigation involving the discount retailer Target Corporation has once again raised the question: Do certain private websites come within the scope of Title III of the Americans with Disabilities Act of 1990 (ADA), which requires that “public accommodations” be accessible to the disabled.  In the case of Target, does its website need to be accessible to the blind?  Though some members of Congress and the U.S. Justice Department (at least during the Clinton Administration), have taken the view that Title III applies to private websites, the few courts to address this question have not uniformly agreed with that position.  The lack of consensus has left businesses - - most of whom today have supporting websites - - with conflicting guidance as to whether they are, in fact, running afoul of Title III if their website is not entirely accessible to the disabled.  Many commentators have urged the Congress to step in and clarify once and for all whether websites are covered under Title III.  Currently, the Congress is considering a bill that some argue would put some teeth back into the ADA and reinstate the protections originally envisioned for the disabled by sponsors of the law.  While the pending legislation, the ADA Restoration Act of 2006 (H.R. 6258), does not address Title III, its passage could embolden others in Congress to tackle unresolved questions pertaining to the law’s definition of a public accommodation.  With no legislative fix on the horizon and a yet unknown president set to take office come January 2009, businesses need to weigh their options now and decide whether to take preemptive measures.