Although no federal appellate court has decided the issue, district courts are continuing to take sides in the debate over whether web-only businesses are subject to Title III of the Americans with Disabilities Act (ADA). For those of you keeping score, California leads the way, with multiple decisions from its district courts holding that they are not. One decision from a Massachusetts district court says that they are. Last week, the US District Court for the District of Vermont, which sits within the Second Circuit (which also includes New York and Connecticut district courts) joined the Massachusetts district court on the “Yes” team.

The issue was before the Vermont court on a motion to dismiss the complaint filed in National Federation of the Blind and Heidi Veins v. Scribd. Scribd is a California-based digital library that operates reading subscription (to e-books, academic papers, legal filings, and other user-uploaded digital documents) services on its website and mobile phone and tablet apps. In this case, NFB and Veins allege that Scribd’s website and mobile applications are inaccessible to the blind, in violation of Title III, because they use an exclusively visual interface and are not programmed to be accessible through screen readers or other assistive technologies. As such, the plaintiffs claimed Scribd is denying blind persons equal access to all of the services, privileges, advantages, and accommodations that Scribd offers and is excluding them from accessing information critical to their education, employment, and community integration.

Scribd based its motion on the argument that Title III does not apply to a website-only business and that the phrase “place of public accommodation” in the statute requires that the business have a physical place where it offers its goods and services to the public. After an extensive review of all the pertinent decisions on this subject, the court concluded that “clearly there is more than one reasonable interpretation of the language at issue here.” It went on to side with plaintiffs, based on the following reasoning:

  • In other parts of the statute, the word “place” is not used to modify the phrase “public accommodation.” In fact, the word “establishment” is sometimes used in lieu of the word “place.” Moreover, the fact that a “travel service” is one of the types of businesses named in the list of places of public accommodation suggests that a business with no physical location open to the public would also be covered by the statute.
  • The legislative history of the ADA, according to the court, reveals a “liberal approach” designed to eliminate discrimination against people with disabilities. To construe the law in a manner that would allow some businesses to be exempt from its non-discrimination mandate would be inconsistent with the statute’s goal of “full participation and access to all aspects of society.”
  • The court concluded that the committee reports accompanying the statute suggest that the “important quality public accommodations share is that they offer goods or services to the public, not that they offer goods or services to the public at a physical location.” Those same reports, according to the court, show that Congress intended the statute to be responsive to technological changes.
  • The court also gave weight to the fact that the Department of Justice has informally interpreted the statute to apply to web-only businesses.

The court’s denial of Scribd’s motion to dismiss means that the litigation will proceed. We predict a settlement is likely in light of this decision.

As we reported last week, we are awaiting the Ninth Circuit’s ruling on this very issue in Cullen v. Netflix and Earll v. eBay, Inc.. Will the Ninth Circuit follow the analytical path this Vermont court carefully laid to cross to the “Yes” team?

Neither this issue, nor the attention it’s garnering, is going away. Even Forbes has taken an interest.