A former client of yours is very impressed with the work you did for him or her. She has a friend whom she believes can also use your expertise. Your law firm has a web site. However, it is not accessible to the blind and this friend of your client is blind. To be accessible to the blind, your web site would have to be encoded to allow the blind person to use their screen reader software so that he or she could use a keyboard instead of a mouse to navigate the site. When the blind friend tries to access your Internet site, he strikes out and becomes very frustrated. What if he sues you for violating Title III of the Americans With Disabilities Act (ADA)? Does he have a case?
Restated, the question is whether Title III of the ADA, which applies to places of public accommodations,1 applies to physical spaces only or does it apply to electronic space as well? To hold that physical structure is the key, would mean giving businesses that operate solely on the Internet carte blanche to discriminate against persons with disabilities when selling their goods and services. Such a holding is hardly equitable, but is there law to support such an inequitable result?
The case law breaks down into three views. First, there is the view that the Internet is simply not a place of public accommodation as set forth in Access Now, Inc. v. Southwest Airlines, Co.2 In Access Now, the Southern District of Florida held that Southwest Airlines did not have to make its Internet site accessible to persons with disabilities because Title III of the ADA restricted its coverage to physical places.3 An opposite view, finding that the Internet is a place of public accommodation, was stated by Justice Posner of the Seventh Circuit in Doe v. Mutual of Omaha Insurance Company.4 While admittedly the statement that follows may well not have been critical to the disposition of Doe since accessing the Internet was not before the court at all, nevertheless, it is noteworthy because of how convinced Justice Posner seems to be of his view of the scope of Title III of the ADA’s nondiscrimination provision. Justice Posner relying on Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England ,5 said:
"The core meaning of this provision [Title III of the ADA’s non-discrimination provision], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web Site, or other facility (whether in physical space or in electronic space) [citation to Carparts omitted] that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do."6 (emphasis added)
Finally, there is a middle ground mentioned by the 9th Circuit in Weyer v. Twentieth Century Fox Film Corporation.7 That ground essentially relies on a two step approach: 1) Determine if a place of public accommodation as defined by Title III of the ADA is somehow involved; and 2) If the answer to the first question is in the affirmative, then assess whether a nexus exists between the event complained of and the place of public accommodation.8 However, even Weyer did not deal with the Internet at all. Thus, Weyer leaves open how the test might apply to the Internet.
We now have an idea how a court might apply Weyer to a case where the inaccessibility of the Internet was at issue. In National Federation of the Blind v. Target Corp.,9 the Northern District of California was faced with a motion to dismiss by Target.10 The National Federation of the Blind had sued Target because the blind could not access Target’s web site as it had not been encoded for the blind to do so.11 In rejecting Target’s motion to dismiss, the Northern District of California reasoned as follows.
Firstly, the court noted the ADA said that the person with a disability had a right to access the services of a place of public accommodation and not services in a place of public accommodation.12 (emphasis added).
Secondly, the court noted that the purpose of the ADA is far broader than physical access as it seeks to bar actions or omissions that impair disabled persons full enjoyment of the services or goods of a place of public accommodation. (emphasis added).13
Thirdly, the court distinguished three other cases that would appear to dictate a different conclusion if the court were to have followed them. They distinguished Rendon v. ValleyCrest Productions, Ltd.,14 (a case where persons with disabilities sued because the screening process to get on "Who Wants to be a Millionaire" discriminated against them), because that case focused on distinction between tangible and intangible barriers.15 The court then distinguished Access Now, discussed above in which Weyer’s nexus approach was mentioned,16 by saying no allegations of a physical place of public accommodation were presented in that case.17 And the court also distinguished Stoutenborough v. National Football League (a case where a person with a disability sued to have the blackout rule lifted as a violation of the ADA)18 on the grounds that Stoutenborough involved a separate party leasing the public space, which was dissimilar to the situation the court faced in National Federation of the Blind.19
Forthly and finally, the Northern District of California in National Federation of the Blind v. Target Corp. noted that the challenged service was heavily integrated with Target’s brick and mortar stores and operated in many ways as a gateway to the stores.20
For the reasons just mentioned, the court held that Target’s motion to dismiss had to be denied.21 However, the court also noted that to the extent the plaintiffs were complaining about information and services offered by Target on the Internet (Target.com) that were not connected to Target stores (i.e., did not affect the enjoyment of goods and services offered by Target stores), the plaintiff did not state a claim for discrimination under the ADA.22
What can we take from the National Federation of the Blind case? Based on the holding of the case, it seems fair to take as a standard that under National Federation of the Blind, the ADA will apply to the Internet whenever it can be shown the challenged services are heavily integrated with brick and mortar places of public accommodations and operate in many ways as a gateway to those places of public accommodations.23 Thus, if National Federation of the Blind is the controlling law, then our law firm would most certainly have to make its web site accessible to persons with disabilities because the web site is most probably heavily integrated with the law firm’s physical place and is operating as a gateway to that law firm.
To summarize, if Access Now is the law, the law firm probably has nothing to worry about as that court was quite clear the ADA applied to physical spaces only.24 On the other hand, if Doe or National Federation of the Blind is the law, then our law firm should have it’s Internet site accessible to persons with disabilities either because electronic space is involved25 or because the site would be integrated with the law firm and operate as a gateway to that firm.26 It is possible that the firm might be able to argue that to embed its Internet site would be an "undue burden," but that would necessitate determining just how expensive the embedding would be and then assessing the overall financial resources of the law firm.27
The question of how Title III of the ADA applies to the Internet is not going to go away, especially as e-commerce takes over all of our lives. The ultimate question will have to be decided by the U.S. Supreme Court, and I would not want to hazard a guess as to how they might so decide this question. In the meantime, based on Doe and on National Federation of the Blind, good preventive lawyering, especially in the 7th Circuit, would suggest that unless your law firm is operated from your house and you see no clients there (which would call into question the existence of a public accommodation), encoding your law firm’s web site so that it is accessible to persons with visual impairments would be a step well worth considering.
1 See 42 U.S.C. §12181(7). In particular, under section F of §12181(7), professional offices are places of public accommodations.
2 Access Now, Inc. v. Southwest Airlines Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002).
3 Id. at 1319-1321.
4 Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999).
5 Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, 37 F.3d 12, 19 (1st Cir. 1994).
6 Doe, 179 F.3d at 559.
7 Weyer v. Twentieth Century Fox Film Corporation, 198 F.3d 1104 (9th Cir. 2000).
8 Id. at 114-15.
9 National Federation of the Blind v. Target Corp., _F.3d_, 2006 U.S. Dist. Lexis 63591 (N.D. Cal. September 6, 2006).
10 Id. at*3.
12 Id. at *14.
13 Id. at *16.
14 Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002).
15 Id. at 1283.
16 Access Now supra, 227 F. Supp. 2d at 1321.
18 Stoutenborough v. National Football League, 59 F.3d 580, 581 (6th Cir. 1995).
19 National Federation of the Blind supra at *19.
21 Id. at *24.
23 If one compares the holding of National Federation of the Blind at *24 with how the court fully distinguishes Stoutenborough- see endnotes 19-20 supra, it would be a fair way for the holding to be states as a positive rule of law rather in the negative as it exists at *24.
24 See endnote 3 supra.
25 See endnote 6 supra.
26 See endnotes 20,23 supra.
27 See 28 C.F.R. 36.104
William D. Goren is an Associate Professor of Legal Studies at Northwestern Business College at their Naperville, IL campus where he has won several awards for teaching excellence and he makes sure to incorporate his mediation training into the classroom whenever possible. When he is not teaching, Mr. Goren serves as a consultant/legal expert on Americans With Disabilities Act (ADA) matters. Mr. Goren also presents and writes extensively on the ADA and other topics. Among his many publications, are the books published by the American Bar Association (ABA): Understanding the Americans With Disabilities Act: An Overview for Lawyers (ABA 2000); and Understanding the ADA, 2nd Edition (ABA 2006). Mr. Goren is a member of both the IL and TX bars. He received his A.B. in Political Science from Vassar College, his J.D. from the University of San Diego School of Law, and his LL.M. in Health Law from DePaul University.