A Blog About Online Gaming and Entertainment Regulations
ADA Accessibility Guidance for the iGaming Industry
The broader gambling industry is transitioning into an increasingly online and mobile-based industry. Proliferation and popularity of online and mobile sports betting have evinced a burgeoning consumer demand for web-based gaming options. As the internet gaming (“iGaming”) market expands, gaming companies need to follow the Department of Justice’s (“DOJ”) new Guidance on web accessibility under the Americans with Disabilities Act (“ADA”) to ensure customers’ adequate access to their internet products. Otherwise, they may be at risk for litigation. In its Guidance, the DOJ stated that the “Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”  While the ADA doesn’t allow for monetary damages in lawsuits brought by individuals (except for attorneys’ fees and costs), if an organization is sued by the DOJ then the organization may have to pay monetary damages for compensatory (but not punitive) relief and civil penalties, which may run as high as $92,383 for a first violation or $184,767 for a subsequent violation.  State laws similar to the ADA do allow for monetary damages in suits brought by individuals, however. For example, in California, the Unruh Act allows $4,000 per offense, and the California Disabled Persons Act allows $1,000 per offense, both of which are in addition to attorneys’ fees and costs. In any case, the costs of litigation, beyond the mere imposition of damages through applicable state law, can be quite substantial.  As such, gaming companies ought to review their public websites’ and mobile applications’ digital accessibility features in reference to the standards endorsed by the Justice Department.
The ADA is a federal statute that prohibits discrimination against individuals with disabilities. Title III of the ADA prohibits discrimination against individuals with disabilities by businesses open to the public, i.e. “public accommodations,” which include businesses like retail stores, places of lodging, food and drink establishments, banks, and entertainment centers such as sports arenas.  In particular, Title III requires businesses to provide “full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations” to individuals with disabilities. This entails that businesses make reasonable modifications to ensure access to the public accommodation’s goods, services, privileges, or activities. Typically, mention of the ADA typically calls to mind adequate access to physical locations for individuals with disabilities. Accessibility issues are increasingly digital, however, as many businesses integrate their websites into a fundamental aspect of their business model.
Indeed, the landmark ADA case Gil v. Winn-Dixie Stores, Inc., which itself propelled the digital accessibility legal issue under the ADA, used this notion as its premise: that when a nexus exists between a business’s website and its physical place of public accommodation then the business website is subject to the ADA. Since Gil, just among federal court filings, there have been over 8,000 digital accessibility lawsuits filed or removed between 2017 and 2020, a number which excludes lawsuits filed in state courts, demand letters and settlements, and DOJ enforcement actions.  Even further, a fifth of all ADA Title III filings in federal courts have been website and mobile application lawsuits since 2018. 
In one gaming-related case, Lisa Frazier, Access Now, Inc., R. David New v. Churchill Downs Inc., Churchill Downs Inc. was sued by a group of individuals with visual impairments over the alleged inaccessibility of its gaming-related websites. The U.S. District Court for the Western District of Pennsylvania denied Churchill’s Motion to Dismiss and found that “because Churchill’s websites barred Plaintiffs’ screen reader software from reading the content of its websites, Plaintiffs were unable to participate in the gaming and entertainment services provided by Churchill. Moreover, this website impediment purportedly has had a negative impact on Plaintiffs’ ability to frequent Churchill’s brick and mortar locations as well.”  While it’s unclear whether businesses (and therefore gaming companies) that operate solely online qualify as a public accommodation, such a case demonstrates potential risks to gaming companies. In any case, it is critical that companies be proactive in ensuring website accessibility not just for themselves, but for their customers.
In order to ensure compliance, companies should review their public websites and mobile applications with the DOJ Guidance in mind. Here are a few examples of website accessibility barriers the DOJ uses:
- Insufficient color contrasts between text and background
- Use of color cues alone to convey information, of which screen readers do not make the user aware
- Lack of text (“alt text”) for images that convey the purpose and contents of an image
- Lack of captions on videos
- Inaccessible online forms which lack labels that screen readers can convey to users, clear instructions, and error indicators (e.g. “missing field required”)
- Mouse-only navigation (or the lack of keyboard navigation options)
While entities covered under the ADA may choose how to ensure ADA compliance, the DOJ references existing technical standards for businesses to use to ensure digital accessibility. In particular, the Guidance refers to the Web Content Accessibility Guidelines (WCAG), which is an international standard developed by the World Wide Web Consortium’s Web Accessibility Initiative, and the Section 508 Standards, which are used by the federal government for accessibility on its own websites. A few basic examples of practices that businesses should follow to ensure that their websites are accessible include sufficient color contrast in text, text alternatives (“alt text”) in images, video captions, use of an automated accessibility checker, and a way for the public to report accessibility issues to the website’s owner. Just as the DOJ has committed to using its enforcement authority to ensure website accessibility for individuals with disabilities, citing several enforcement actions and settlements, businesses should commit to creating and maintaining websites accessible for those with disabilities—this includes gaming companies and any of those with a hand in the expanding iGaming industry.