The chance of future DOJ investigations justifies companies’ reviews of customer-oriented websites and apps for accessibility.

As consumers continue to use the Internet and their smartphones for their shopping in astonishing numbers, especially on this Cyber Monday, a recent Department of Justice (DOJ) settlement agreement raises questions and potential serious implications for any company with customer-oriented websites or mobile applications. The settlement agreement requires Ahold USA., Inc. and Peapod, LLC (Peapod) to make the www.peapod.com website and Peapod’s mobile applications accessible to the disabled, including persons with vision, hearing, and manual impairments. The settlement agreement demonstrates that the DOJ is reviewing and/or monitoring websites and mobile apps for accessibility and remains aggressive in its push to extend the requirements of Title III of the Americans with Disabilities Act (ADA) to all websites and mobile apps—even when the sites are unrelated to actual physical places of public accommodation. According to the settlement agreement, the DOJ concluded that www.peapod.com was inaccessible to the disabled after initiating a “compliance review” authorized by Title III and its implementing regulations.^[1] Peapod, however, contested the DOJ’s conclusion that www.peapod.com and Peapod’s mobile apps were not ADA compliant.

The settlement agreement is particularly noteworthy because www.peapod.com is a purely online grocery delivery service, unrelated to a “brick and mortar” physical place of public accommodation. Most courts considering application of the ADA to websites require a website to have a “nexus” to a physical place.^[2] In the past, the DOJ has required websites and mobile apps to be accessible—for example, in a March 2014 consent decree with H&R Block. However, unlike the H&R Block consent decree, which involved a website and mobile apps with a nexus to physical places, the Peapod settlement agreement requires that a website and apps with no nexus to a physical place be made accessible to the disabled. The Peapod settlement agreement therefore shows that the DOJ’s Notice of Proposed Rulemaking (NPRM), which is expected in March 2015, may require—in the words of the Abstract for the DOJ’s NPRM—the websites and apps of “private entities of all types,” even “[s]ocial networks and other online meeting places” to comply with the ADA.

The settlement agreement also indicates which standards the DOJ’s regulations eventually may require websites and mobile apps to meet. The settlement agreement requires www.peapod.com and Peapod’s mobile apps to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA). The DOJ has required compliance with the WCAG 2.0 AA in the past, including in the H&R Block consent decree. The Peapod settlement agreement further requires Peapod to designate a Website Accessibility Coordinator to coordinate compliance with the agreement; adopt a Website and Mobile Application Accessibility Policy; post a notice on its home page on its accessibility policy, which would include a toll-free number for assistance and a solicitation for feedback; annually train website content personnel on conforming Web content and apps to the WCAG 2.0 AA; seek contractual commitments from its vendors to provide conforming content, or (for content not subject to a written contract) seek out content that conforms to the WCAG 2.0 AA; modify bug fix priority policies to include the elimination of bugs that create accessibility barriers; and conduct automated accessibility tests of the website and apps at least once every six months and transmit the results to the government. The settlement agreement, which stays in effect for three years, additionally provides that every 12 months, the Website Accessibility Coordinator must submit a report to the government that details Peapod’s compliance or noncompliance with the agreement. Peapod is not the only entity that will conduct testing under the settlement agreement. At least once annually, individuals with vision, hearing, and manual disabilities will test the usability of the Web pages. Notably, however, the settlement agreement does not impose damages or a civil penalty on Peapod.

There is a chance that the DOJ’s eventual regulations will differ from the standards to which the DOJ requires Peapod to conform. The settlement agreement accounts for that possibility. It states that if the DOJ promulgates final regulations on website accessibility technical standards during the term of the settlement agreement, the parties must meet and confer at either’s request to discuss whether the agreement must be modified to make it consistent with the regulations.

_{[1]. See 42 U.S.C. § 12188(b)(1)(A)(i) (“The Attorney General . . . shall undertake periodic reviews of compliance of covered entities under this subchapter.”); 28 C.F.R. § 36.502(c) (“Where the Attorney General has reason to believe that there may be a violation of this part, he or she may initiate a compliance review.”).}

_{[2]. See, e.g., Nat’l Fed. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953–56 (N.D. Cal. 2011).}