Consider the following:

You represent a business that is entirely based on the Internet, though it does have a corporate headquarters where people work. The Internet site of the company that you represent is not accessible to persons with disabilities. A person with a disability wants to take advantage of your Internet site’s products and services, but cannot do so because of the lack of accessibility. Is your client subject to a lawsuit under Title III of the ADA?

Restated, the question is whether Title III of the ADA, which applies to places of public accommodations, 42 U.S.C. section 12181, 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 four 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, 227 F. Supp. 2d 1312 (S.D. Fla. 2002). 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. With respect to airlines, this case has now been overruled. In particular, new regulations issued by the Department of Transportation implementing the Air Carrier Access Act will require US and foreign carriers that operate at least one aircraft having a seating capacity of more than 60 passengers, and own or control a primary website that markets to air transportation consumers in the United States, to ensure that the pages facing the public on the primary websites are accessible to individuals with disabilities. Keep in mind, the one aircraft having a seating capacity of more than 60 passenger requirement is based on the manufacturer and not upon how the airline might use the particular aircraft. These regulations will also require carriers to ensure that webpages on their primary websites associated with core travel information and services conform to Level AA success criteria of the web content accessibility guidelines 2.0 within two years of the rules effective date and that all other webpages on the primary websites are conforming within three years of the rule’s effective date. Finally, those regulations also require that if the site of the air carrier has links to third-party websites, those third-party websites must be accessible or the person linking to those sites must be told that the site being linked to is not accessible. For more information on these regulations, the reader is referred to a blog entry of mine.

Second, an opposite view, stating the Internet is a place of public accommodation, was stated by Judge Posner of the Seventh Circuit in Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (Seventh Circuit 1999). While admittedly the statement that follows may well not have been critical to the disposition of Doe because 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, 37 F.3d 12 (1st Cir. 1994), said on page 559 of the opinion:

The core meaning of this provision [Title III of the ADA’s nondiscrimination 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 (emphasis added).

Under this view, the Internet site would most definitely be subject to Title III of the ADA and would need to be made accessible unless a showing could be made that it was either an undue burden or would create a fundamental alteration to the nature of the business, 28 C.F.R. section 36.303(a).

Third, there is a middle ground mentioned by the 9th Circuit in Weyer v. Twentieth Century Fox Film Corporation, 198 F.3d 1104 (9th Cir. 2000). That view 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. However, even Weyer did not deal with the Internet at all. Thus, Weyer left 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., 452 F. Supp. 2d 946 (N.D. Cal. 2006), the Northern District of California was faced with a motion to dismiss by Target. The National Federation of the Blind had sued Target because the blind could not access Target’s website as it had not been encoded for the blind to do so. In rejecting Target’s motion to dismiss, the Northern District of California reasoned as follows. First, 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 (emphasis added).

Second, 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 a disabled person’s full enjoyment of the services or goods of a place of public accommodation (emphasis added).

Third, 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., 294 F.3d 1279 (11⁺ Cir. 2002) (the 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 a distinction between tangible and intangible barriers. The court then also distinguished Access Now, discussed above in which Weyer’s nexus approach was mentioned, by saying no allegations of a physical place of public accommodation were presented in that case. Finally, the court distinguished Stoutenborough v. National Football League, 59 F.3d 580 (6th Cir. 1995) (a case where a person with a disability sued to have the blackout rule lifted as a violation of the ADA) on the grounds that Stoutenborough involved a separate party leasing the public space, which was not the situation the National Federation of the Blind court was faced with. Finally, the National Federation of the Blind court 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.

The court held that Target’s motion to dismiss had to be denied. However, they 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.

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. Thus, if National Federation of the Blind is the controlling law, then it is debatable whether this hypothetical client would be subject to suit under Title III of the ADA because while the corporate headquarters is most definitely a place of public accommodations, it is unclear whether you would be able to argue that the Internet would be a gateway to the corporate headquarters versus the products offered by the company.

Finally, there is now a fourth view of how the ADA works with respect to the Internet. That view is represented by National Association of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D Mass. 2012). Where a deaf person, the National Association of the Deaf, and the National Association of the Deaf’s Massachusetts affiliate brought suit against Netflix alleging that its streaming, which was not close captioned, violated the Americans with Disabilities Act. The defendant responded that the Americans with Disabilities Act was not violated and that the Americans with Disabilities Act was preempted by the 21st-Century Communication Video Accessibility Act of 2010. The court was having none of these arguments. First, the court said that the ADA was meant to evolve with technology. Second, the court read the categories of what is a place of public accommodations and assumed they applied in the context of the Internet regardless of how the product of the business is consumed because the ADA covers the services “of” a place of public accommodation and not services “at” or “in” a place of public accommodation (National Federation of the Blind, as mentioned above, made the same argument). For example, Netflix could well be a service establishment because it provides customers with the ability to stream video programming through the Internet. It could also be a place of exhibition or entertainment because it displays movies, television programs, and other content. Finally, it could be a rental establishment because it engages customers to pay for the rental of video programming. In other words, there is no reason why these categories could not apply in electronic space.

A business entity sued for not being accessible in accordance with its obligations as a place of public accommodation under the Americans with Disabilities Act must also be the entity that owns the place that is being sued. Netflix claimed that it was not such an entity. However, Netflix did admit that it was working to provide captioning for the content on it streaming service, and that was enough for the court to say that Netflix had some degree of control over the situation.

Finally, the defendant tried to claim that the 21st Century Communications and Video Accessibility Act of 2010 precluded claims under the Americans with Disabilities Act and/or conflicted with the Americans with Disabilities Act. The court was having none of this either. Nothing in the 21st-century Communications Act suggested that that Act preempted the Americans with Disabilities Act. Further, the court saw no conflict between the two acts because the scope of the 21st-century Communications Act is fairly narrow. That is, that act requires captioning of things originally shown on TV that make its way to the Internet after a certain date. Much of that may not even be applicable to the Netflix situation.

Before moving on to a summary of what the National Association for the Deaf decision means, it should be noted that Netflix, instead of appealing the decision, entered into a consent decree committing Netflix to close captioning its streaming.

So what does this fourth approach mean? It means that disability rights advocates have now been given the green light to think beyond the three traditional lines of thought that had previously existed on whether an Internet site could be subject to the Americans with Disabilities Act. It also means that defendants must be aware that their exclusively online businesses, even if they don’t fit the traditional lines of thought that existed previously, may now be subject to the Americans with Disabilities Act. This case is significant because of the new approach that it takes. That is, it just assumes that businesses are places of public accommodations if they are exclusively on the Internet doing what places of public accommodations listed in the Americans with Disabilities Act  (see 42 U.S.C. section 12181), would be doing if they were in physical space. If this is the view that would be adopted by a court in your client’s jurisdiction, then your client’s Internet site would need to be made accessible unless it would constitute an undue hardship or fundamental alteration to the nature of the business.

To summarize, if Access Now is the law, your client has nothing to worry about as that court was quite clear that the ADA applied to physical spaces only. Your client may also be off the hook if National Federation of the Blind is the law because there is no gateway to brick-and-mortar stores in our hypothetical. On the other hand, if Doe or National Association of the Deaf is the law, then our law firm should have its Internet site accessible to persons with disabilities either because electronic space is involved, or because it is operating a business subject to Title III of the ADA. It is possible, though extremely unlikely, that the firm might be able to argue that to embed its Internet site would be an “undue burden,” per 28 C.F.R. section 36.104, but that would necessitate determining just how expensive the embedding would be and then assessing the overall financial resources of company.

Before ending this article, two other points are in order. First, the Department of Justice for some time now has been talking about issuing regulations concerning accessibility of the Internet. As for what those regulations might look like, the reader is referred to my blog entry, mentioned above, that discusses what the Department of Transportation has done with respect to the Internet sites of airlines. It is worth noting that the Department of Justice just moved to intervene in a suit filed by the National Federation of the Blind against H&R Block where the National Federation of the Blind is claiming that the H&R Block’s Internet site is not accessible to persons with disabilities.

Second, the National Federation of the Blind case mentioned above is a District Court decision. Currently, the Ninth Circuit has before it a case involving eBay (the lower court decision is Earll v. eBay, 2012 WL 6652444, N.D. December 20, 2012), and a plaintiff who is deaf involving the same issue about whether the ADA requires a physical space before an entity will be subject to Title III of the ADA. The big Internet companies have lined up on the side of eBay. As of this writing, the Ninth Circuit has heard argument but had not decided the case. It would seem that the decision when it does come down would have to fall into one of the four categories mentioned in this article. In any event, the reader should be on the lookout for when this case does come down from the Ninth Circuit

The question of how Title III of the ADA applies to the Internet is not going to go away, especially as ecommerce takes over all of our lives. The ultimate question will have to be decided by the US Supreme Court, and I would not want to hazard a guess as to how they might decide this question. In the meantime, based on the case law, the trend seen in current regulations, and in anticipation of future regulation from the Department of Justice, good preventive lawyering would suggest that having your client’s website encoded so that it is accessible to persons with disabilities using screen readers and voice dictation technology would be a step well worth considering.