Although the Americans with Disabilities Act (ADA) was created with land-based facilities in mind, the law now also applies to websites, which could cause problems for casinos

The Americans with Disabilities Act (ADA) encompasses and protects a large number of disabled Americans from discrimination based on disability. Federal law requires places of public accommodation to be accessible to those with disabilities.

The ADA requires a private entity whose operations affect commerce and fall within one of 12 categories enumerated in the Act to provide public accommodations (42 U.S.C. § 12181).

Casinos are considered places of public accommodation because they are private entities that own, lease or operate a place of public accommodation. Due to the multifunctionality of casinos, they are categorized as either a place of lodging or a food/drink establishment under the ADA.

For those companies found in violation of ADA rules, under Title III of the ADA, litigants may only seek an injunction, not monetary damages, in pursuing a disability discrimination claim. However, ADA claims can be lucrative for class action law firms because litigants may seek reimbursement of attorneys’ fees under the ADA.

JUMPING ONLINE

The ADA was enacted in 1990, prior to the vast expansion and prevalence of the Internet and over two decades before smartphones became commonplace. The legislators who enacted the ADA could not account for brick-and-mortar businesses to simultaneously maintain an online presence.

Therefore, it was unclear whether websites were places of public accommodation that were subject to ADA regulation.

In 2017, advocates and class action litigators began flooding the courts with complaints after a federal court determined that business websites are subject to the ADA when a nexus exists between the website of a business and its physical place of public accommodation. A sufficient nexus exists when a website is heavily integrated with, and operates as a gateway to, a physical location (Gil v. Winn Dixie Stores). Since 2018, over 4,500 federal lawsuits have been filed regarding inaccessible websites that plaintiffs claim to be subject to ADA regulation. Retailers and university websites have been targets of a surge of ADA lawsuits, mostly filed by the visually impaired. The landmark ADA ruling in the Gil case has left any business with a website susceptible to claims.

Additionally, the Eleventh Circuit Court of Appeals held that a company’s website and its physical location are intertwined (Haynes v. Dunkin’ Donuts LLC). The court determined that a website is subject to ADA compliance if that website constitutes a facilitation of the use of the goods or services offered at its physical location.

Additionally, the court held that a website couldn’t discriminate against people because of disability, even if the goods and services offered are intangible. The court concluded that the alleged barriers on the website denied the plaintiff access to the services of the physical locations that are available online.

Notwithstanding the foregoing, an ADA claim will fail if the sole allegation is that the website deprived the consumer of full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of its place of public accommodation (Gomez v. Fang & Li Corp.). The Gomez case held that a claim must show that access, or lack thereof, to the website was tied to access to the restaurant.

The rulings in the above-referenced cases offer examples in which courts are increasingly subjecting websites to similar compliance standards as the physical locations that the websites represent.

CASINOS COME INTO PLAY

A casino’s website is heavily integrated with its physical location because websites generally permit on-site hotel reservations and promotional event advertisements. New Jersey casinos that offer online gaming must maintain web servers in Atlantic City to satisfy the state constitutional requirement that gaming occurs in Atlantic City (N.J.S.A. 5:12-28.1). This constitutional requirement demonstrates a strong nexus between a website and physical location. As such, New Jersey casinos and casinos in states with similar laws should be cautious with regard to ADA compliance issues.

Additionally, casino websites tend to be highly visual, as pictures and moving images are often the focal point of a casino website. These aesthetic-centric websites are prone to ADA claims, specifically by visually impaired people. Most New Jersey casinos offer online sports gambling with more casinos likely to follow suit. Online sports betting may strengthen the nexus between the website of a casino and its physical location. In turn, this increases the vulnerability of casinos to ADA claims.

Many companies offer software with the ability to scan the website of a business to determine ADA compliance. The use of ADA-compliant software provides evidence of proactive compliance but it does not provide complete ADA compliance. The website of the ADA (www.ada.gov) provides a tool kit that offers assistance in producing an ADA compliant website. The ADA recommends that websites advise visitors about the standards and guidelines that the website is using to create an ADA-accessible website. Website hosts should also establish, implement and post an online policy that their webpages are accessible. The ADA provides an accessibility guide for web developers, which can be found at www.access-board.gov. Accessibility for visually impaired individuals often requires web developers to use techniques developed by private and government organizations that are applicable to simple and complex websites.

Implementing accessibility features likely will not drastically alter the layout of a website.

Visually impaired individuals often use software that reads aloud any text located on a screen.

Additionally, people who have difficulty using a computer mouse may use voice recognition software to control their computers with verbal commands.

Assistive technologies are evolving and being introduced daily. If photos, graphics, scanned images, or image maps are included on a website, text equivalents should be added by including “alt” tags or long descriptions. Not all images on a website are compatible with alt text, which is a common misunderstanding.

Purely decorative images, for instance, should be left blank. It is also important that websites use the color and font settings of the browser of each visitor and operating system.

As popularity in Internet gaming increases, particularly in the wake of the COVID-19 pandemic, casino operators should ensure that in-house staff and contractors who are responsible for webpage and content development are properly trained and experienced in developing ADA compliant websites. Casino operators should also distribute the Department of Justice technical assistance document titled “Accessibility of State and Local Government Websites to People with Disabilities” to all in-house staff and contractors on an annual basis.

Before casinos and other business update their websites, the appropriate personnel should consult with a regulatory compliance attorney to assess ADA compliance.