Is a Website a Place of Public Accommodation?
Currently, there is a split of judicial authority over whether and how a commercial website might be a place of public accommodation (“PPA”) under Title III of the Americans with Disabilities Act (“ADA”). Websites are a significant portal for access to commercial services and products, and they continue to grow in complexity. Their significance and complexity underline why ADA applicability is an important inquiry. If Title III of the ADA applies, businesses would need to implement and maintain websites that do not discriminate against disabled persons while providing business goods, services, facilities, privileges, advantages, or accommodations.
The split of judicial authority derives, in part, from the absence of congressional or executive guidance. Congress has not spoken on the matter, despite inquiry in 2000.1 The executive branch has also been silent as there are no provisions in the Code of Federal Regulations, despite the Department of Justice issuing an advance notice of proposed rulemaking in 2010 seeking commentary.2 Thus, courts facing the task of adjudicating private lawsuits that claim a website can be a PPA have been left to their own devices interpreting Title III, which passed before websites became the ubiquitous commercial gateway they are today.
The most obvious argument against a website being a PPA is that websites are not brick-and-mortar structures like the enumerated possibilities for PPAs set forth in 42 U.S.C. § 12181 (e.g., museums, nurseries, schools, restaurants, hotels). This was the rationale used in 2002 by the federal court of the Southern District of Florida in Access Now, Inc. v. Southwest Airlines, Co.3 to dismiss an ADA suit. An early case, the Florida federal court recognized the issue whether a website could be a PPA was a question of first impression.4 The court then found the ADA’s language was “unambiguous” and that falling within the ADA as it was drafted would require any PPA to be a physical structure.5
Since 2002, however, courts have created greater flexibility in what the ADA’s statutory language allows them to find. The federal court for the Northern District of California has twice looked at whether a commercial website can be a PPA. The 2006 decision in National Federation of the Blind v. Target Corp.6 identified a nexus test, which had been developing in similar cases, for deciding when a website could be considered a PPA. The California federal court explained that if a plaintiff alleges a nexus exists between a PPA and a particular service, then a plaintiff may claim “an ADA violation based on unequal access to a ‘service’ of a place of public accommodation.”7 In 2011, the California federal court added clarity to this test in Young v. Facebook, Inc.8 In Facebook, the court stated an ADA plaintiff must demonstrate a nexus between: (1) the alleged discrimination presented on the website; and (2) the defendant’s brick-and-mortar PPA.9 What’s more, the court provided an important reminder that the website owner must also own, lease (or lease to), or operate the brick-and-mortar PPA – merely selling a good or service in another business’s store is insufficient.10 Finally, in the 2012 case of National Association of the Deaf v. Netflix, Inc.,11 the federal court for the District of Massachusetts sided with the plaintiffs’ categorization of how a website fits under 42 U.S.C. § 12181(7) (e.g., Netflix’s “Watch Instantly” service being a “service establishment”).12 The court also quoted Target Corp. to then say, “[W]hile the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation.”13 This includes commercial websites offering goods and services.
So, what should a business with an indispensable Internet presence do? The World Wide Web Consortium’s Web Accessibility Initiative suggests implementing web platforms that improve website accessibility. For example, to assist the vision-impaired, use alternative-text describing images for screen readers. To assist the hearing-impaired, include closed-captioning options for video posts. To assist those with mobility-impairments, try to structure webpages and forms such that voice control technologies and the like are enabled to work. As your business takes proactive steps, remember the ADA does not require changes that will fundamentally change the nature of the services or create undue burdens. So be proactive, but be critical. Finally, it is important to recognize that for all the potential effort to comply with the spirit of the ADA, there are benefits. Proactive businesses will have less fear of regulatory or private legal action, and there will be fewer opportunities for bad press in traditional media outlets or social media sites, like Facebook and Twitter.
1 See Applicability of the Americans with Disabilities Act to Private Internet Sites: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (2000), available at http://commdocs.house.gov/committees/judiciary/hju65010.000/hju65010_0f.htm (last visited Sept. 11, 2013).
2 See Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Service of State and Local Government Entities and Public Accommodations, 74 Fed. Reg. 43460 (proposed July 26, 2010) (to be codified at 28 C.F.R. pts. 35-36).
3 227 F. Supp. 2d 1312 (S.D. Fla. 2002).
4 Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1315 (S.D. Fla. 2002).
5 Sw. Airlines, Co., 227 F. Supp. 2d at 1317, 1318.
6 452 F. Supp. 2d 946 (N.D. Cal. 2006).
7 Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 952 (N.D. Cal. 2006).
8 790 F. Supp. 2d 1110 (N.D. Cal. 2011).
9 Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011).
10 See Facebook, Inc., 790 F. Supp. 2d at 1115-16.
11 869 F. Supp. 2d 196 (D. Mass. 2012).
12 Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 201 (D. Mass. 2012).
13 Netflix, Inc., 869 F. Supp. 2d at 201.