Safeway agreed in settlement of a lawsuit brought by visually-impaired customers in California and Washington State to ensure that its website, which allows people to order groceries online and have them delivered to their homes, is accessible to persons with disabilities.  Safeway has already made significant enhancements to its online shopping website to meet the agreed-to standard and will continue to do so over the next year pursuant to the settlement.

Like Safeway’s customers in this ADA lawsuit, the Department of Justice (“DOJ”) and private litigants have challenged a range of hotels, movie theatres, banks, pharmacies, retail outlets, private and public workplace building owners, and other covered facilities under the Americans with Disabilities Act of 1990 (“ADA”) to make their public accommodations accessible.  Although courts have consistently ruled that the ADA applies to websites when they act as a gateway to a brick-and-mortar store, courts faced with the question of whether the ADA’s accessibility requirements apply to website-only businesses have reached varied outcomes.

It bears emphasis that the accessibility standard adopted by Safeway in the settlement mirrors what the DOJ set forth in a proposal to expand its ADA rules to cover a large range of online activity.  The DOJ rulemaking has been pending since January 2011.   With the current status of the law regarding application of the ADA to web-based businesses unclear, a wide variety of companies, such as Safeway, are already finding solutions to make their websites more accessible.