The Department of Justice will soon address the applicability of the Americans with Disabilities Act (“ADA”) to private retailers offering goods and services to the public online.

The ADA generally prohibits discrimination on the basis of disability and ensures equal opportunity for persons with disabilities. This applies to private sales or rental establishments under Title III of the ADA, such as clothing stores, shopping centers, hardware stores, and grocery stores.

Traditionally, the ADA was thought to apply only to “brick-and-mortar” stores. In more recent years, however, a handful of courts have applied the ADA to online websites, when finding that a “nexus” exists between the e-commerce website and the physical store. This has led to some high-profile settlements. But because courts are split on this issue, there isn’t clear guidance for online retailers.

In light of the uncertainty in this area, the DOJ will issue a Notice of Proposed Rulemaking (NPRM) in November 2013 to provide guidance on this issue to State and local governments under Title II. Although not directly applicable to private entities, this will likely provide insight on how the DOJ will implement the technical standards necessary to comply with the ADA. The DOJ will then issue a NPRM in March 2014 setting forth the scope and standards for private parties covered under Title III.

If you operate a retail website, you should pay close attention to these developments and ensure that your site is in compliance.

Will Your Website Soon Be Required to be ADA-Accessible?