The Limits of the Law: Reimagining Marketplace Accessibility

Historically, the legal system served as the primary mechanism to protect marginalized, disenfranchised, and underprivileged consumers. The U.S. Constitution articulates clear commitments to equality that have been continually reinforced through amendments and legislative and executive actions. These efforts have successfully remediated many discriminatory marketplace practices; however, progress has not occurred uniformly for all groups. Gender-based discrimination persisted well into the 20th century until the introduction of reforms such as the Nineteenth Amendment and later marketplace access protections such as the Equal Credit Opportunity Act of 1974. Similarly, discrimination on the basis of disability prompted the development of more robust legislative protections such as the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA).

Given this legal scaffolding, most marketing firms have relegated the responsibility for accessibility to legal departments, where compliance is often reduced to meeting minimum statutory standards with the primary goal of minimizing litigation risk. However, access is not synonymous with inclusion. This compliance-oriented approach leaves experiential and psychosocial mismatches unaddressed, leaving deeply emotional burdens on consumers that compound daily and turn consumption from a source of enjoyment into one of frustration (Patrick and Hollenbeck 2021). Such exclusion experiences also contribute to the continued rise in disability-related lawsuits each year. ¹

This commentary calls for an inclusive design–oriented approach and advances three core arguments. First, it identifies the limitations of a compliance-oriented view of accessibility and proposes that the responsibility for marketplace accessibility and inclusion must reside within the marketing function. Second, it explains why marketers—rather than lawmakers—are best positioned to lead efforts toward marketplace inclusion. Finally, it offers actionable guidance to marketers to design inclusive experiences throughout the customer journey.

What the Law Captures—and What It Cannot

The U.S. Constitution was drafted primarily as a charter of restraint, designed to protect individuals from unwarranted government intrusion rather than to impose affirmative obligations on private actors. Constitutional guarantees are largely framed as negative prohibitions—defining what the state may not do—rather than as positive assurances of individual experience. What this framing implies is that the law can prohibit explicit discrimination and mandate baseline access, but it rarely extends to mandating proactive inclusion within private marketplaces.

Consider, for example, the ADA. The statute was designed primarily to remove explicit barriers to market entry, not to regulate the quality of experiences that unfold once access is granted. Title III of the ADA, which governs public accommodations operated by private entities, requires physical accessibility (Baker, Stephens, and Hill 2001), but its scope largely centers on entry and participation thresholds rather than experiential equity.

In certain cases, courts have extended ADA obligations beyond mere access. In United States v. Hoyts Cinemas Corp. (2004), a federal appeals court ruled that confining wheelchair users to the front row, the widely considered “worst seats in the house,” violated the ADA's requirement that disabled patrons receive lines of sight comparable to those of other customers. Similarly, courts have interpreted the ADA to address challenges unforeseen in 1990, particularly in digital contexts. In Robles v. Domino's Pizza (2019) and Gil v. Winn-Dixie (2021), federal courts held that websites and mobile applications operated by private entities must be accessible to visually impaired users.

Despite these judicial extensions, accessibility litigation has risen sharply, affecting firms of all sizes across physical and digital environments. These lawsuits signal a deeper structural issue: Exclusion remains embedded in marketplace design, while the law struggles to keep pace with evolving consumer experiences.

Scholars have argued that a key limitation of the ADA lies in its grounding in the medical model of disability (Oliver 2012), which implicitly categorizes consumers as “normal” or “abnormal” and seeks to facilitate participation by enabling individuals with disabilities to approximate those deemed “fully functioning.” By contrast, the social model of disability conceptualizes disability as an identity and conceptualizes exclusion as the mismatch between individuals and their environments (Lteif et al. 2025; Patrick and Hollenbeck 2021).

Most recent consumer research on inclusive design adopts this social lens to reveal how marketplace design can create or alleviate exclusion. Patrick and Hollenbeck (2021) posit three levels of design: Level 1 (basic accessibility), Level 2 (equitable participation), and Level 3 (empowered success). Legal standards generally align with Level 1, ensuring entry to the marketplace. Yet, most consumer experiences extend far beyond entry. A restaurant may meet accessibility requirements while maintaining aisle layouts that restrict wheelchair navigation, or a digital game may be technically compliant yet unusable without text-to-speech. Lteif et al. (2025) demonstrate how sensory, cognitive, behavioral, and social mismatches can arise across multiple stages of the consumer journey—including information search, evaluation, use, and disposal—and can accumulate over time. Although these mismatches often fall outside legal scrutiny, they can powerfully determine whether, and which, consumers experience autonomy, dignity, and a sense of belonging in the marketplace.

Why Marketers—Not Lawmakers—Must Lead

Contemporary marketing has evolved from the management of discrete one-off consumer interactions to the management of seamless and ongoing consumer experiences across the entire consumer journey (Lemon and Verhoef 2016). Given their vantage point, marketers are uniquely positioned to identify if and when consumers—particularly those from underrepresented and marginalized groups—experience mismatches, inconveniences, and exclusion. Since accessibility failures often emerge during use and consumption—situations well beyond the point of legal access—we propose three reasons why marketers, rather than lawmakers, are better positioned to lead inclusion efforts:

First, marketers can act with greater speed and sensitivity. Because they are customer-facing, marketers can detect emerging mismatches via real-time interactions, feedback, and behavioral data. In contrast, lawmakers operate through slow legislative and judicial cycles that struggle to keep pace with evolving consumer needs.

Second, marketers possess the organizational resources to generate unique and creative solutions that leverage user experience research and cocreation to develop inclusive solutions that often benefit broader audiences. The law sets minimum standards for access and is not designed to foster innovation.

Third, a strong business case can be made for inclusion. Accessibility expands markets, improves return on investment, reduces downstream redesign costs, and mitigates growing legal and reputational risks—particularly in digital environments. As such, marketers are directly incentivized to address accessibility because the financial consequences of inclusion materialize through consumer experience outcomes.

In sum, while accessibility law operates through a protective, compliance-oriented logic that prevents harm at the threshold, marketing operates through a proactive, inclusive design–oriented logic that facilitates participation throughout the consumer journey. As such, marketers must lead the work of translating access into genuine inclusion.

From Access to Inclusion: A Call to Action for Marketers

Next, we summarize some of the insights from recent research that can steer marketers toward the creation of more inclusive marketplaces.

Marketers need to adopt an inclusive design orientation (Patrick, Chandrasekaran, and Allen 2025), defined as the shared belief that inclusion is an organizational imperative. The adoption of this belief is a necessary condition for marketers to sustainably create marketplace inclusion.

Marketers should prioritize Level 3 inclusive design—“empowered success”—rather than focusing narrowly on Level 1 compliance (Patrick and Hollenbeck 2021). Level 3 design enables all consumers to engage fully and seamlessly without heightened awareness of their limitations or identities.

Marketers must anticipate mismatches before they occur. Patrick and Shulman (2024) recommend a set of crucial questions to ensure that consumers are not unintentionally excluded. Lteif et al. (2025) suggest mapping the entire consumer journey and applying an intersectional lens, such as the ADDRESSING framework, to identify where mismatch and exclusion is likely to emerge.

Marketers should engage brand communities as partners in inclusive design (Hollenbeck and Patrick 2025). These communities surface social and symbolic mismatches that are often invisible to firms and help anchor inclusion efforts in lived experience (e.g., Microsoft's Inclusive Tech Lab).

Inclusion must be delivered through people as well as products (Grewal and Van Der Sluis 2024). Training frontline employees to interact competently with diverse bodies, identities, and communications is essential.

In summary, it is imperative for marketers to move beyond legal minimums and to adopt user-led inclusive design across all touchpoints along a customer journey. In doing so, marketers can move toward creating a more accessible and inclusive marketplace.