President George Bush signs the Americans with Disabilitites Act in the White House Rose Garden, July 26, 1990.

When George H.W. Bush signed into law the Americans With Disabilities Act (ADA), which prohibits discrimination in “any place of public accommodation,” the internet barely existed. While, initially, people with physical handicaps sued restaurants, hotels and other businesses to force them to install wheelchair ramps and make other similar accommodations, a new trend has emerged.

Now, businesses are being sued under the ADA based on claims that their websites are places of public accommodation, and are not fully accessible to people with various impairments. Often, these lawsuits center on the fact that, although a visually impaired person can use a “screen-reader” to convert text on a website to audio, if there is no subtitle to a picture or image, such a user would have no way of knowing that a picture or image exists, let alone what it might be.

Just last year, Winn-Dixie Supermarkets lost a trial based on claims that its website discriminated against visually impaired individuals. As a result Winn-Dixie was ordered to make changes to its website and to pay $100,000 in legal fees to the plaintiff. While Winn-Dixie is appealing the judgment, this result seems to have stoked the fires of both opportunistic and evangelistic plaintiffs.

How can a website be a “place of public accommodation” if it isn't a “place?” Well, the first dominos in a chain that led to such a result came in the form of rulings like the one in the 1994 case of Carparts Distribution Center v. Automobile Wholesaler's Association of New England. In that case, the U.S. Court of Appeals for the First Circuit held that, “It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.”

In some jurisdictions, courts tried to limit situations where a website could be deemed to be a place of public accommodation. In the 2000 case of Weyer v. Twentieth Century Fox Film, for instance, the Ninth Circuit held that, “The principle of noscitur a sociis requires that the term, 'place of public accommodation,' be interpreted within the context of the accompanying words, and this context suggests that some connection between the good or service complained of and an actual physical place is required.” As a result, the Northern District of California ruled in National Federation of the Blind v. Target that the website for Target Stores only was a place of public accommodation “to the extent … that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores …”

Other jurisdictions, like the District of Massachusetts, have since blown the doors wide open on whether a website can be a place of public accommodation. In National Association of the Deaf v. Netflix, (D. Mass. 2012), a suit brought on behalf of deaf and hearing impaired individuals, the district court judge noted that the ADA lists 12 venues that qualify as places of public accommodation, including a “place of exhibition and entertainment,” a “sales or rental establishment” and a “service establishment.” The judge then found that even though Netflix wasn't an actual place, it functioned as a place of exhibition and entertainment, a sales or rental establishment and a service establishment. Thus, the judge ultimately concluded that Netflix's website was a place of public accommodation.

Given the reach of the internet, companies may find little solace even if they operate their businesses from a jurisdiction that takes a narrow view of whether a website can be deemed a place of public accommodation. The bottom line: if a company sells goods through its website, it should be prepared to deal with a potential claim grounded in the assertion that its website is a place of public accommodation.

So, what can you do to ensure that you are not hit with one of these lawsuits?

While the Department of Justice said in 2015 that it was going to promulgate regulations related to the accessibility of websites, it later reversed course and declined to do so. Since then, the World Wide Web Consortium (W3C), which bills itself as an international community with the goal of developing web standards, has developed a series of guidelines known as WCAG 2.0. Many courts have used these guidelines to determine if a website is ADA compliant. In fact, in the Winn-Dixie case, part of the relief granted was an order that Winn-Dixie upgrade its website to comply with WCAG criteria.

While WCAG 2.0 has three levels of compliance (A, AA and AAA), it generally appears that if a website complies with Level AA, courts will find that to be enough to be complaint with the ADA. Unfortunately, this recently got even more complicated because W3C adopted WCAG 2.1 criteria this past June. Because WCAG 2.1 is so new—and because W3C is not a legislative body—it is anyone's guess whether the 2.1 criteria will set a new base-line standard.

In light of all of this, every business that engages in e-commerce should carefully consider whether its website could be deemed to be a place of public accommodation and if it complies with WCAG 2.0 (and 2.1), Level AA. While the cost of upgrading and maintaining a website to meet those standards may be expensive, this expense likely pales in comparison to what it would likely cost a company if it were sued for noncompliance.

Shepard Davidson is a partner in the business litigation group at Burns & Levinson in Boston and co-publisher of The In-House Advisor blog (www.in-houseadvisor.com). He can be reached at [email protected].