The Americans with Disabilities Act (ADA or Act) serves as a comprehensive civil rights law that generally prohibits discrimination on the basis of disability. Since the ADA was signed into law on July 26, 1990, the Act has protected the rights of individuals with disabilities in employment, access to government services, and other contexts.
Title III of the ADA specifically prohibits discrimination on the basis of disability in the activities of “places of public accommodation.” The Act defines places of public accommodation as private entities whose operations affect commerce that fall within at least one of twelve categories, including places of public gathering, sales or rental establishments, service establishments, and other similar categories. In essence, places of public accommodation are businesses that offer goods and services to the public. For example, grocery stores, hotels, restaurants, and shopping centers all qualify as places of public accommodation.
Although the ADA provides this broad definition, courts disagree on whether places of public accommodation are limited to physical places or whether they encompass something more. A key issue in this debate is whether a website, or any other Internet-delivered service, can be regarded as a place of public accommodation.
The Debate Begins: DOJ’s Advance Notice of Proposed Rulemaking
On July 26, 2010, the 20th anniversary of the signing of the ADA, the Department of Justice (DOJ or Department) issued an Advance Notice of Proposed Rulemaking (ANPRM) announcing its intention to revise the regulations implementing the ADA’s Title III. Specifically, the DOJ aims to establish requirements for making the goods and services offered by public accommodations through the Internet accessible to individuals with disabilities. The DOJ, therefore, requested comments from the public for a sixmonth period for ideas on Web-based accessibility regulations under the ADA.
The Internet, as we know it today, did not exist when the ADA was enacted. Now, countless private companies provide goods and services to the public through websites (e.g., consumer goods, education, entertainment, social networks, and healthcare information). The DOJ argues that being unable to access websites puts disabled individuals at a great disadvantage in today’s society, which is largely driven by the electronic marketplace.
Companies often fail to incorporate or provide features that would enable individuals with disabilities to fully access their websites. The DOJ contends that these barriers can be eliminated by requiring public accommodations that provide products or services to the public through websites to make their sites accessible to and usable by individuals with disabilities under the ADA. The Department argues that Congress contemplated that the ADA would be applied in a manner that evolved over time. Thus, the DOJ interprets the ADA’s definition of a place of public accommodation to include websites that offer goods and services to the public.
In its ANPRM, the DOJ emphasized its interest in adopting the WCAG 2.0 website accessibility standards created by the World Wide Web Consortium (W3C), a nonprofit organization. The WCAG 2.0 standards contain twelve guidelines that address Web-based accessibility, such as media requirements based on different types of disability (e.g., blindness, low vision, deafness, deaf-blind, and physical impairment). The DOJ’s stated interest in existing voluntary guidelines suggests how serious the Department considers the issue.
Although the DOJ has accepted public comments, it has yet to issue new rules regarding Web-based accessibility under the ADA. The Department has stated, however, that the regulatory process is still ongoing even though it has not proceeded as quickly as initially hoped. The DOJ maintains the position that although the rulemaking process is incomplete, Web-based services are places of public accommodation under the ADA. There is no doubt that the Department has been a driving force behind the Web-based accessibility debate.
Recent Case Law: National Association of the Deaf v. Netflix
As discussed, courts disagree on whether a website, or any other Internet-delivered service, can be regarded as a place of public accommodation under the ADA. Some courts hold that the ADA only applies in physical spaces. Access Now, Inc. v. Sw. Airlines Co., 227 F. Supp.2d 1312 (S.D. Fla. 2002). Other courts have ruled that the ADA applies to the Internet where the website serves as a gateway to a brick-and-mortar store, such as a retail store’s online website. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp.2d 946 (N.D. Cal. 2006).
On June 19, 2012, the federal District Court of Massachusetts became the first federal court to hold that the ADA’s accessibility requirements apply to website-only businesses. Nat’l Ass’n of the Deaf v. Netflix, 2012 WL 2343666 (D. Mass. 2012). The National Association of the Deaf filed this lawsuit claiming that Netflix violated the ADA by failing to offer closed captioning for all of the videos delivered through its “Watch Instantly” streaming website. Netflix filed a motion to dismiss the lawsuit, arguing that the ADA’s requirements for public accommodations apply only to physical structures.
The court, however, rejected Netflix’s argument and allowed the claim to move forward. The court found that limiting the ADA’s reach to only tangible places and physical structures would frustrate the purpose of the ADA. The court justified its ruling by arguing many of the same points that the DOJ had emphasized in its ANPRM. For example, the court said that the ADA was meant to evolve with technology. The court even referenced the fact that the DOJ was making an effort to issue new rules under the ADA regarding Web-based accessibility.
Thus, the court held that “Netflix, which operates its website and Watch Instantly service through computer servers and the Internet, is a public accommodation subject to Title III of the ADA, even if it has no physical structure .where customers come to access its services.” Finding Netflix’s website to be a place of public accommodation goes far beyond requiring closed captioning for the deaf. This court’s ruling means that all other users with disabilities must have access to the information and services provided by Netflix’s website as well. For this reason, the Netflix decision is important because of its potential to impact virtually any company that offers services or goods to the public through the Internet.
Although the Netflix decision will almost certainly be appealed, it is significant because it demonstrates a shift towards courts accepting the proposition that websites can be subject to the requirements of the ADA as places of public accommodation. If the Netflix decision stands, the court’s ruling may be persuasive for similar rulings in other jurisdictions. The DOJ’s ongoing rulemaking process also provides support that the Web-based accessibility debate is here to stay. Ultimately, the Internet may become the next battleground for ADA litigation as momentum builds for this new approach.
If websites must comply with the ADA, there will certainly be compliance costs for businesses to ensure their websites are accessible to disabled individuals under the ADA. This, of course, could spark a flurry of litigation from ADA plaintiffs’ lawyers. Although future compliance and litigation costs are largely speculative, this is issue is worth analyzing from a business perspective as it picks up steam.
For the time being, businesses should begin thinking about the logistics of making their websites accessible under the ADA. The WCAG 2.0 standards may provide a good starting point for companies that want to know where the DOJ and future courts probably are headed. In conclusion, businesses should begin educating themselves on the issue and be prepared to see similar claims in other courts.