Yet another challenge has been lodged concerning the exclusion of some (but not all) private company Web sites from the requirements of the Americans with Disabilities Act (ADA) and similar state laws. In National Federation of the Blind & Sexton v. Target Corporation, plaintiffs filed suit in California bringing a class action complaint for relief under its civil rights acts providing protections for disabled persons. Plaintiffs point out that the requirements of state law and the ADA are identical, and violations of one set of laws are violations of the other.
In their suit, plaintiffs alleged that the Web site of Target, www.Target.com, contains “thousands of access barriers that make it difficult, if not impossible, for blind customers to use the Web site”, in violation of state law. Notably, the complaint attempts to address one objection often raised to the ADA’s coverage, the defense that a company’s Web site is not sufficiently a ‘place’ to fit within the coverage of the statute and regulations. The plaintiff’s complaint notes that a disabled person’s interaction with Target.com can frequently result in the need to interact with its physical location, directly linking a company’s Web site to Target’s physical ‘place’ of accommodation. For instance, Target.com, features:
A store locator, allowing persons who wish to shop at a Target store to learn its location, hours and phone numbers; an online pharmacy, allowing a customer to order a prescription refill online for pickup at a Target store; . . . weekly ads, allowing a customer to know what items are on sale at a particular Target store location. . .
(Complaint para. 18)
For a long time after the Americans with Disabilities Act was passed (and long after the Rehabilitation Act was enacted in 1973 and subsequently amended), the application of ADA principles to Web sites and the Internet was delayed. In some ways, that was because the growth of the Internet and pervasiveness of Web-based communications really only reached the public and corporate world in the mid to late 90s; parties and lawyers representing them didn’t grasp the impact Internet shopping would have on people’s lives. The growth of the World Wide Web [Internet] coupled with the Supreme Court’s broad application of the public accommodations provision of the ADA signaled the need for closer adherence to the requirements of the ADA regardless of the situation. See PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).
Title III of the ADA requires that: "No 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." 42 U.S.C. § 12182 (1990)(emphasis supplied). Because of the asserted lack of a bricks-and-mortar type of ‘place’ for a Web site, defendants in litigation have been successful in convincing courts that the ADA did not apply to Web-based accommodations. Courts have noted that almost everything identified in the statute is a physical structure: e.g., inn, hotel, restaurant, grocery store, professional office, public transportation. 42 U.S.C. § 12181(7). Thus, they denied the use of the ADA to protect disabled persons from discrimination in a place other than one housed in a tangible, physical structure.
Thus, In Access Now Inc., v. Southwest Airlines Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002), a visually impaired customer was unable to purchase tickets via Southwest Airlines’ Web site, but the court ruled a “public accommodation” must be physical, not virtual, in nature. An Internet Web site is not such a ‘place’ unless there is a nexus between it and a physical accommodation and the court granted Southwest Airlines, Co. a summary judgment. The Sexton suit attempts to create that nexus through pointing out each instance in which a blind person who is unable to navigate Target’s Web site is then barred from being able to visit and use its physical store locations on an equal basis with sighted customers.
As pointed out by a variety of commentators, limiting the coverage of civil rights laws to the traditional bricks-and-mortar type of place ignores the important role other types of services and communications have in today’s society. “The problem with this treatment is that the restrictive definition ignores a host of services which, while there may be a physical component to the provision of services, consist mainly of the provision of something less physical in nature. For example, this section specifically includes the “office[s]” of a lawyer or accountant or insurance agent but not the actual provision of services such as advice and counseling.” Evgenia Fkiaras, Liability Under the Americans with Disabilities Act for Private Web Site Operators, 2 Shidler J. L. Com. & Tech. 6 (Oct. 24, 2005). Other helpful articles discussing much the same point are: Setting the Standard: Section 508 Could Have an Impact on Private Sector Web Sites Through the Americans with Disabilities Act, 19 Ga. St. U. L. Rev. 1197 (2003); S. Mendelsohn & M. Gould, When the Americans with Disabilities Act Goes Online: Application of the ADA to the Internet and the World Wide Web, http://smu.edu/csr/articles/2004/Winter/ Mendelsohn.pdf.
The view that Title III disability discrimination laws can reach even virtual locations also is supported by the settlement of cases against two private corporate Web sites, Ramada.com and Priceline.com, announced by the Attorney General of New York in 2004. Therefore, it does seem that plaintiffs in the NFB/Sexton case have a good chance of prevailing. As of now, the case has been removed to the federal district court in California, where it will go through the usual pretrial discovery and procedural steps.
Written By Victoria L. Herring, Attorney At Law
Principal Legal Consultant
Criterion 508 Solutions, Inc.