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As business transactions increasingly have moved onto the internet, questions about equal access to websites for persons with disabilities have arisen in parallel. While equal access is without question the goal, when and how this will be accomplished remains to be seen.
The District of Minnesota has recently seen an increase in lawsuits claiming that commercial websites violate the ADA because they lack features which would make them accessible to persons with disabilities. These suits rely heavily on circuit court dicta, issued in minority opinions, in cases unrelated to commercial websites. Adding fuel to the fire is the fact that the Department of Justice (“DOJ”) has announced its intention to issue a rule confirming its longstanding opinion that Title III of the ADA applies directly to commercial websites.
Despite the litigation trend, the DOJ stance, and minority opinion dicta, district courts across the country have widely rejected the contention that the ADA applies directly to commercial websites. The vast majority of courts have held that websites are not “places of public accommodation” as required for direct application of the ADA. These courts have held that in order for an ADA violation to exist there must be a “nexus” between the website and a physical place of public accommodation. ADA-website claims have experienced a notable lack of success when courts apply the “nexus” theory. Despite the lack of success, the contradiction created by the DOJ’s stance and minority opinion dicta almost ensures further litigation in this area.
The ADA was enacted on July 26, 1990 with the stated purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Unlike most other discrimination statutes, the ADA requires affirmative action that includes making “reasonable modifications” and taking “such steps as may be necessary” to avoid discrimination.1 In the case of Title III, such steps must be taken to ensure that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”2 The ADA provides a list of public accommodations to which Title III applies, including hotels, restaurants, theatres, auditoriums, bakeries, laundromats, depots, museums, zoos, schools, and gymnasiums.3 In total 54 “places of public accommodation” are listed, all of which are physical facilities that are open to the public.4 Where lawsuits have been filed alleging that inaccessibility of a commercial website violates the ADA, the definition of “place of public
accommodation” becomes a central
issue. Nowhere does the ADA specifically mention internet accessibility.
Since the ADA was enacted in 1990 the percentage of American commerce that takes place online has grown by leaps and bounds. In many cases Congress has taken action to update or supplement statutes. However, Congress has chosen not to amend the ADA to explicitly cover the internet. For instance, when the ADA was amended in 2008, Congress chose not to expand coverage.5 The choice not to amend was made long after the website-accessibility issue had been brought to the forefront. In addition, Congress has chosen not to amend the ADA to cover the internet despite the fact that it passed separate legislation mandating the accessibility of all federal government websites.6 The fact is that Congress has considered the issue, discussing it in subcommittee on three separate occasions,7 but as yet has chosen not to expand the scope of the ADA to cover the internet.
“Places of Public Accommodation”
No circuit court has issued a substantive holding in an ADA-website case. However, ADA-website cases often cite to circuit court precedent on whether a “place of public accommodation” must be a physical place. ADA-website cases are filed under Title III which regulates “the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”8 In other words, there must be a public accommodation for Title III to apply. If a “place of public accommodation” must be a physical place, then a website itself, cannot qualify.
Although the majority of circuits have held that a “place of public accommodation” must be a physical place, two circuits have held otherwise. In the 3rd, 6th, 9th and 11th circuits, a “place of public accommodation” must be a physical place.9 In the 1st and 7th circuits, no physical place is required.10 The 8th Circuit has not decided the issue. The vast majority of circuits which have addressed this question have done so while deciding whether Title III applies to a discriminatory insurance policy. These cases are so distinguishable from ADA-website cases that often the only similarity is the need to determine whether a “place of public accommodation” must be a physical place. Despite this fact, precedent on both sides of the issue contains strong dicta indicative of Title III’s scope. Seventh Circuit precedent goes so far as to mention “websites” and suggest that Title III may apply.11 On the other hand, the 6th Circuit has stated that “to interpret these terms as permitting a place of accommodation to constitute something other than a physical place is to ignore the text of the statute.”12 Until the circuit courts are faced with the unique set of circumstances, issues and questions created by the ADA-website issue, we are forced to look to district court decisions which have analyzed and decided the issues in the correct context.
As previously stated, no circuit court has issued a holding on how Title III applies to commercial websites. Where district courts have faced the question, the majority of claims have been dismissed under various rationales.
Claims involving internet-only businesses have been dismissed for lack of a place of public accommodation. Often, the first issue courts address in ADA-website claims is whether the website itself is a place of public accommodation. Only one court, in one case, has found that a website is a place of public accommodation.13 Most courts faced directly with the question have held that websites are not places of public accommodation as required for direct application of the ADA.14 These courts rely on precedent citing the doctrine Noscitur a sociis, which states that a term should be interpreted with accompanying words in order to avoid the giving of unintended breadth to the acts of Congress.15 Because the list of places of public accommodation provided by Congress includes only physical places, Congress intended “place of public accommodation” to apply to physical places only.16 In addition, Congress has had ample opportunity to address the issue, but has chosen not to do so. When courts hold that places of public accommodation must be physical places, claims against internet-only business have been dismissed.17
Websites & Nexus
ADA-website claims against businesses with a website and a physical place of public accommodation have been dismissed for lack of a “nexus” between the two. When courts have held that websites are not places of public accommodation they have routinely held that in order for a Title III violation to exist, there must be a “nexus” between the website and a physical place of public accommodation.18 When there is no nexus, claims will be dismissed.19 What constitutes the required nexus has varied between courts. The first view is that the “nexus” exists if a lack of website accessibility impedes access to a physical place of public accommodation.20 Other courts have defined the required “nexus” more broadly, holding that lack of website accessibility constitutes an ADA violation if it impedes the full and equal enjoyment of goods and services offered in a physical location.21 The court in National Fed. of the Blind v. Target Corp., stated that “it is clear that the purpose of the statute is broader than mere physical access” because it protects “the full and equal enjoyment” of goods, services and accommodations.22
The court in National Fed. Of the Blind v. Target started by noting that websites cannot be places of public accommodation because they are not physical places.23 However, the court also noted that “[t]he statute applies to the services of a place of public accommodation, not services in a place of public accommodation” and therefore claims can be cognizable even if they occur away from the physical place.24 Since Title III protects “the full and equal enjoyment” of goods, services and accommodations, it protects more than mere access.25 The court held:
to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied. To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA.26
Even though the Target holding provides a path by which a lack of website accessibility could lead to an ADA violation, the court also defined significant limitations on this possibility. For example, a business is not required to communicate with disabled persons via their website as long as alternate means of conveying the same information are available.27 By way of analogy the court noted, “if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu.”28 The court held that Target bore the burden of arguing, as an affirmative defense, that the information available on Target.com was available in another reasonable format.29 Further, Target would not be forced to make changes to the website if doing so would fundamentally change the nature of the service or if it would result in an undue burden.30
Amid the legal wrangling and technicalities of statutory interpretation, the fact remains that millions of disabled Americans must use assistive technology in order to access internet websites. For example, blind individuals must use screen-reading software that converts text to audio, enabling them to hear what is on the screen. In order for this software to be functional, websites must include features such as embedded text that describes graphics, images, and links. The best resource available to businesses interested in improving web accessibility is the Web Accessibility Initiative (“WAI”).31 The WAI has promulgated a set of guidelines known as the Web Content Accessibility Guidelines, version 2.0 (WCAG 2.0”).32 The guidelines provide instructions on how to make websites more accessible to people with disabilities. Corporations and nonprofits alike continue to strive to make websites fully accessible to all people, not only because full accessibility is the right thing to do, but because it will benefit those companies that do business online. At this point, Congress has chosen not to set a mandate by way of the ADA. United States district courts have widely, although not unanimously, decided to recognize this congressional decision. Even though the Target decision provides a potential path to liability, if the pattern at the district court level holds, ADA-website cases have a very marginal chance of success. The only thing we can be sure of is that this issue will not go away until Congress or the courts provide additional clarity.
1 42 U.S.C. §12182(b).
2 42 U.S.C. §12182(a).
3 42 U.S.C. §12181(7).
5 ADA Amendments Act, Pub.L. No. 110-325.
6 29 U.S.C. §794(d) (“Section 508 of The Rehabilitation Act”).
7 Applicability of the ADA to Private Internet Sites: Hearing Before the H. Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (2000); Achieving the Promise of the ADA in the Digital Age–Current Issues, Challenges, and Opportunities: Hearing Before the Subcomm. On the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong., (2010); Innovation and Inclusion: The ADA at 20: Hearing Before the Subcomm. on Commc’n, Tech. and the Internet of the S. Comm. on Commerce, Sci., and Transp., 110th Cong. (2010).
8 42 U.S.C. §12182(a).
9 Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998); Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Weyer v. Twentieth Cen. Fox Film Corp., 198 F.3d 1104 (9th Cir. 1999); Rendon v. Valley Crest Prod. Ltd., 294 F.3d 1279 (11th Cir. 2002);
10 Carparts Dist. Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999).
11 Doe, 179 F.3d at 559.
12 Parker, 121 F.3d at 1014.
13 National Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196 (D. Mass. 2012).
14 Ouellette v. Viacom, 2011 WL 1882780 (D. Mont. 03/31/2011); Access Now, Inc. v. Southwest Airlines Co., 227 F.Supp.2d 1312 (S.D. Fla. 2002); Cullen v. Netflix, Inc., 880 F.Supp.2d 1017 (N.D. Cal. 2012); Young v. Facebook, Inc., 790 F.Supp.2d 1110 (N.D. Cal. 2011); Earll v. eBay, Inc., 2011 WL 3955485 (N.D. Cal. 09/07/2011).
15 See, e.g., Weyer, 198 F.3d at 1114.
16 National Fed. of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006) (citing Weyer v. Twentieth Cen. Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 1999).
17 See, e.g., Cullen, 880 F.Supp.2d 1017; Young, 790 F.Supp.2d 1110; Earll, 2011 WL 3955485.
18 See, e.g., Access, 227 F.Supp at 1321; Ouellette, 2011 WL at *5; Target Corp., 452 F.Supp.2d at 953-54.
19 See, e.g., Access, 227 F.Supp 1312; Ouellette, 2011 WL 1882780
20 Access, 227 F.Supp.2d 1312 (holding that southwest.com is not a means to accessing a physical location and therefore not a Title III violation); Ouellette, 2011 WL 1882780 (dismissing claims based on inaccessible websites because plaintiff failed to allege that his access to a physical location had been restrained).
21 Target, 452 F.Supp.2d 946.
22 Id. at 953-54.
23 Id. at 952.
24 Id. at 953.
25 Id. at 953-54.
26 Id. at 956.
27 See Id. at 955-56.
29 Id. at 956.
30 Id. at 955.