Clients who distribute their products or services, in large part, through the use of the Internet should take note of a recent federal court decision under the Americans with Disabilities Act (ADA). If followed in other courts, this decision could require companies to make significant changes in their website in order to comply with ADA requirements.
A federal district court ruled that a company selling its products exclusively through a website, and with no physical store of any kind, is a place of public accommodation under the ADA and must provide access for visually impaired computer users. National Fed. of the Blind v. Scribd, Inc., No. 14-CV-162 (D. Vt. March 19, 2015). In denying a defense motion to dismiss on the “public accommodations” issue, Judge William K. Sessions III allowed the plaintiffs to proceed with their case on the theory that the ADA requires Internet retailers to provide non-visual means for blind consumers to access a site’s content. Such websites must be programmed, the plaintiffs claim, to allow visually impaired users to convert graphical information found on websites and apps into audio or Braille formats using special screen reader software.
Scribd, the retailer in that case, operates an online digital bookstore through which users can download digital and audiobooks upon payment of a monthly fee. The digital and audiobooks themselves would be accessible to sight-impaired readers once downloaded, but those readers would be unable to shop on the Scribd website because it provides a visual interface exclusively, without any non-visual means of operation.
Title III of the ADA provides that “[n]o 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. The statute defines “public accommodation” by reference to a list of “entities” that affect interstate commerce, including “an inn, hotel … restaurant, bar … motion picture house, theater … store, shopping center … museum, library, gallery” and other specific places. Id. at § 12181(7). The statutory definition concludes each of these lists of specific businesses with more generic descriptions, such as “other place of lodging … other establishment serving food or drink … other place of exhibition or entertainment … other place of public gathering … other sales or rental establishment … [and] other place of public display or collection.”
After noting that federal courts have reached different conclusions about the application of the ADA to online businesses, comparing, for example, Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (explaining that “some connection between the good or service complained of and an actual physical place is required”), with Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001) (“An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store”), the court embarked on its own reading of the ADA’s legislative history. It concluded that because the “Internet is central to every aspect of the ‘economic and social mainstream of American life,’ excluding businesses that sell services through the Internet from the ADA” would run afoul of the statute’s purposes and frustrate the U.S. Congress’s intent. The court concluded that Scribd’s website, offering subscription services, is within the ADA’s public accommodations definition as a “place of exhibition and entertainment,” a “sales or rental establishment,” a “library,” or a “place of public display or collection.”
The ruling on what constitutes a “public accommodation” could be influential under many statutes besides the ADA. Both federal and state civil rights statutes enacted in the 1960s use the same concept of “public accommodations” to define their reach. Many states expanded these laws in the 1970s to cover discrimination based on gender, sexual orientation, and other considerations. Some states have adopted definitions of “public accommodations” that are tied to lists of establishments. Others use broader and more generic definitions.