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Within the past month the application of Title III of the ADA to publicly offered services beyond their physical structures was solidified in a settlement reached between New York State's Attorney General's office and two websites, Ramada.com and Priceline.com. The settlement was reached because complaints had been filed over the accessibility for disabled persons of the websites of these two private entities. Following the settlement, a press release was issued to explain the purpose and results of the settlement.
Eliot Spitzer, New York Attorney General, said "Accessible web sites are the wave of the future and the right thing to do. We applaud these companies for taking responsible and proper steps to make their web sites accessible to the blind and visually impaired. We urge all companies who have not done so to follow their lead." The ADA generally dictates that all "places of public accommodation" and all "goods, services, facilities, privileges, advantages, or accommodations" of places of public accommodation, must be made accessible to disabled citizens, absent undue hardship. New York law provides similar civil rights protections.
Until the Supreme Court rules specifically on the issue, it is hard to know whether non-government websites are officially governed by the terms of the ADA's public accommodations provisions. However, in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the Supreme Court signaled its view that the public accommodations provision of the ADA should be read expansively rather than restrictively. In addition, practicalities may lead some companies to make sure their websites are accessible. Given the extent of government contracting found in the private sphere, it would be easier and more efficient for many companies to just go ahead and make every website accessible rather than try to differentiate among them. Standardizing the accessibility process not only is the right thing to do from the standpoint of making an important medium (the Internet) fully available to everyone, but certainly it is more cost-effective to do so as a regular process than to change methods multiple times.
Back when the Americans with Disabilities Act (ADA) was being proposed and legislated, the Internet was in existence, but its pervasiveness was not generally apparent. Perhaps because of this Congress did not specifically list the Internet or World Wide Web (WWW) as a type of 'public accommodation' under the ADA. Title III of the ADA which sets out the requirements for "public accommodations" 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). However, the obligations of Title III have been held to only extend to private entities which fall in the definition of 'public accommodations'. As noted by courts discussing the application of ADA's Title III to the Internet, almost all of the public services defined in the statute were described as physical, tangible structures: inn, hotel, restaurant, convention center, grocery store, bank, professional office, public transportation station, library, zoo, school, et. seq. 42 U.S.C. § 12181(7). This focus upon a physical existence of a "public accommodation" has led some courts to deny the use of the ADA to protect disabled persons from discrimination in a public accommodation which is not in some way housed in a tangible structure, such as the Internet.
This recently happened in a case out of the Eleventh Circuit. Just a few days ago the appellate court dismissed the appeal of the plaintiff in Access Now, Inc. v. Southwest Airlines Company, No. 02-16163 (11th Cir., September 24, 2004). Although the question of whether the ADA (Title III) applies to prohibit discrimination in or on the Internet was presented to the district court (and ruled upon adversely to the plaintiff, who then appealed), the legal ground for challenge was changed and the 11th Circuit avoided ruling either way, since the question was not clearly presented to the court on appeal.
So, the fact remains that many courts (such as the district court in Access Now) will continue to deny ADA Title III protections from discrimination to persons interacting with the Internet. That comes from the narrow reading of the language of the statute, as discussed above. The problem with this is that the restrictive definition ignores a host of services which, while there may be a physical component to them, consist mainly of provision of something less physical in nature. For example, Title III 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. So, does a lawyer have to make his or her office building site accessible, but not provide services and advice to disabled persons once they get in the door?
Congress's failure to indicate that the physical setting of the provision of services includes the actual provision of the services (rather than excludes them) has caused problems since the passage of the ADA. Courts have issued rulings on both sides of the issue, and no definitive answer is yet available. Despite the lack of case law development, several authors have examined the application of the ADA's Title III provisions to private enterprises providing services through the Internet. As is clear from reviewing these resources, the coverage of the ADA, particularly regarding a target as fluid as the Internet, is a moving target and any reliable research in this area really should be done in full light of all facts and be as current as possible.
Written By Victoria L. Herring, Attorney At Law
Principal Legal Consultant
Criterion 508 Solutions, Inc.