by Michael Cork, Esq.
The ADA was enacted in 1990, when the Web was still in the embryo stage and businesses did not market via a website. Title III of the ADA prohibits discrimination in places of "public accommodation." 42 U.S.C. §12182(a). Not surprisingly, the ADA did not specifically identify websites at the time, or whether they qualify as "public accommodations." Presently, any company without a website is at a distinct disadvantage regarding sales and marketing. The original language of the ADA describes 12 types of physical places as public accommodations—places like bakeries, grocery stores, hardware stores, etc. But it also uses the words, "other sales or rental establishment" and "other service establishment." 42 U.S.C. §12181(7).
Proponents of website accessibility argue two basic theories under which websites are "places of public accommodation" under Title III of the ADA. First, the website itself is a place of public accommodation; second, the website is one of the "goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation." See, e.g., Nat'l Fed'n of the Blind v. Target Corp., 425 F. Supp. 2d 946 (N.D. Cal. 2006); and Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002).
Whether either of these arguments is successful depends on the jurisdiction in which you are located. Attorneys sometimes say, "The law is unsettled" or "there is a circuit split." This is "legalese" meaning simply that various courts have decided the issue differently. As noted, the ADA does not address the issue directly. And the Department of Justice stated in 2010 its intent to develop website standards for "non-governmental" entities. But in December of 2015, the DOJ said it would not issue such regulations for private-sector public-accommodation websites until at least 2018. So, a review of the law of your jurisdiction is in order.
The federal Seventh Circuit Court of Appeals has jurisdiction over the United States District Courts in Indiana, Illinois, and Wisconsin. Way back in 1999, that Court had no trouble in finding that a website qualifies as a "place of public accommodation" under Title III of the ADA. The Court specifically held that the "core meaning" of Title III of the ADA requires the owner of a website or other facility open to the public—in physical space or electronic space—to make the facility accessible to disabled persons in the same way it is accessible to nondisabled persons. Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).
As with most potential legal issues, preventive action is the best course. Any entity with a website open to the public should take steps to review its accessibility to the disabled who might want to visit and do a little "electronic window shopping."
This article is intended for informational purposes only and should not be treated or interpreted as legal advice. For specific advice, contact the attorney of your choice.