I was in the midst of preparing a presentation on ADA website obligations for the Texas Mortgage Bankers Association when I got an email from Jason Richmond of Anttix, Inc., a website design and accessibility consultant. He asked me to clarify, for the benefit of some of his clients, whether the ADA applied to the websites of businesses with fewer than 15 employees. The short answer is: yes, it does. It isn’t surprising though that many businesses and even lawyers are confused about this.

Two different parts of the ADA, Titles I and III, apply to most private businesses. Title I applies to businesses as employers and deals with the rights of disabled employees. Title III applies to businesses that are open to the public and deals with the rights of disabled members of the public. Therein lies the confusion.

Title I only applies to businesses with 15 or more employees. Here’s the statutory tracking for the relevant parts of Title I:

• 42 U.S.C. § 12112(a) forbids discrimination by “covered entities.”
• 42 U.S.C. § 12111(2) defines “covered entities” to include employers and
• 42 U.S.C. § 12111(5)(a) defines “employers” as businesses with 15 or more employees.

Thus, only employers with 15 or more employees are covered by Title I.

Coverage of Title III, on the other hand, goes like this:

• 42 U.S.C. §12182 forbids discrimination by persons who own, lease or operate a “public accommodation.”
• 42 U.S.C. §12181(7) defines a “public accommodation” as any business that falls into one of ten categories of business that typically deal with the public. There is no mention of the number of employees.

Thus, Title III covers any business open to the public, no matter how few employees it has.

An additional source of confusion comes from the fact that not all businesses are public accommodations. A factory, for example, is not usually a public accommodation because it isn’t open to the public. If a factory has 15 or more employees it must to comply with Title I, but if it doesn’t sell to the public it probably does not have any obligation to comply with Title III.

That “probably” can also be a source of confusion. Many courts say that every website that can be accessed by the public is a public accommodation covered by Title III of the ADA. A factory that has no store open to the public might still be covered by Title III if it has a website open to the public. Not all courts agree and the law is developing rapidly, but the safest bet for any business with a website is to treat the website as a public accommodation that must be accessible to those with disabilities under Title III of the ADA.

So, whether a business has only one employee or a thousand, if it is open to the public either in a building or on the internet it is probably covered by Title III of the ADA, and that means it needs an accessible website unless it has a lot of spare cash and a taste for protracted litigation.*

* In which case please call me – I’d love to carry on the fight for you.