The Americans with Disabilities Act (the “ADA”) is widely known for its accessibility requirements relating to certain buildings and other spaces (e.g. hotels, restaurants, and other commercial improvements). Recently, however, more consumers have initiated class action litigation for ancillary items used by these places of “public accommodation.” For example, several class-action lawsuits have been filed against a number of well-known retailers for use of credit card readers and point of sale systems that only have flat touch screen surfaces (i.e. no Braille, tactile raised characters, etc.). Some of these card readers or POS systems at issue may force certain consumers with disabilities to face a choice between not using these systems and providing confidential personal PIN information to a clerk or third party to complete a transaction (potentially compromising the security of their financial accounts and information).

Consumers have also litigated or initiated litigation under Title III of the ADA for accessibility of websites offered by traditional brick-and-mortar retailers (e.g. Target Corp.) and for purely e-commerce sites for services without traditional locations (e.g. Apple’s iTunes store). The Department of Justice (the “DOJ”) indicated that it will be issuing a proposed rule this year which should provide guidance on the obligation to make websites accessible and ADA compliant.

Recently, however, the DOJ settled an ADA enforcement action with Florida State University (“FSU”) which requires FSU to ensure, among other things, that the offending FSU website (including its mobile applications) conforms to the Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) Level AA Success Criteria and other Conformance Requirements.

Certain lawsuits related to the above matters are still pending and the DOJ’s proposed rule has not yet materialized. However, in light of the FSU settlement (and assuming the DOJ will continue to seek a broad interpretation of the ADA and the DOJ’s own enforcement powers), developers (including mobile app developers) and their clients should consider assessing the risk of inaction when it comes to the accessibility, function and potential ADA compliance of certain mobile applications and websites. Many companies have already voluntarily complied with many of the Web Content Accessibility Guidelines referenced above for their mobile and web applications.