In 1990, President George H.W. Bush signed the Americans with Disabilities Act, making it the law of the land. The ADA’s stated purpose is to “provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities”; to eliminate discrimination against individuals with disabilities; to regulate commerce in order to address major areas of discrimination faced day to day by people with disabilities; and “to ensure that the Federal Government plays a central role in enforcing the standards.”
Title III of the ADA says that no 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 by any person who owns, leases, leases out or operates a place of public accommodation.
The ADA’s definition of public accommodation includes most hotels, restaurants, bars, theaters, stadiums, grocery stores, hardware stores, banks, laundromats, travel services, funeral parlors, gas stations, professional offices (accountant, lawyer, insurance office, health care provider and hospital), stations for public transportation, museums, libraries, galleries, parks, zoos, amusement parks, other places of recreation, private schools, other places of education, day care and senior citizen centers, homeless shelters, food banks, other social service centers, gyms, spas, bowling alleys, golf courses, other places of exercise or recreation and other retail and service establishments.
Essentially, most private brick-and-mortar businesses that are open to the public fall under the definition of “public accommodation” and must be accessible and usable by individuals with a disability.
But do business websites fall within that definition, too? Currently, the answer seems to depend on the location and nature of the business.
Lawsuits seeking to have Title III’s reach include websites continue to emerge. Most of these suits involve websites that are not accessible to the visually impaired by way of screen reader software, which vocalizes visual information on a computer screen.
The core issue in these lawsuits is whether the website is a place of public accommodation under the ADA. The ADA does not expressly mention websites. After all, there was not a lot of e-commerce in 1990.
So the courts must decide Congress’ intent. The courts that have decided these cases are split.
One group interprets public accommodation narrowly: “The inaccessible website of a brick-and-mortar retail store could run afoul of the ADA if the website’s inaccessibility interferes with the full and equal enjoyment of the goods and services offered at the physical store, but a business that operates solely through the internet and has no customer-facing physical location is under no obligation to make their website accessible.”
Courts applying this narrow interpretation have held that Facebook’s and Netflix’s websites are not places of public accommodation but Target.com does fall under the definition.
Other courts interpret “place of public accommodation” broadly so that it includes websites of companies that only peddle their wears online (e.g., a video streaming service and a company that sells insurance online).
Some of the reasons given in support of this broad view are that Congress included “travel services” (which used to conduct business over the phone) and “other sales or retail establishments” in the definition of public accommodations; Congress would not intend to protect only those customers who conduct business in a store; Title III applies to private entities, not private places; and the broad interpretation is consistent with the ADA’s broad anti-discriminatory purpose.
The Supreme Court and the 5th Circuit Court of Appeals, which includes Texas, have not decided any cases that squarely address the issue. However, the U.S. District Court for the Southern District of Texas recently presented a third view when it held that “a website is not a place of public accommodation … [so a credit union] cannot be liable for its website’s alleged failure to comply with the ADA.”
Its decision was based on a 5th Circuit opinion that held vending machines are not places of public accommodation. The district court’s ruling is a departure from both the narrow and broad views of other courts, which have all held that at least some websites are subject to the ADA.
Of the courts that have decided these cases, some focus on the ADA’s purpose, which in the broadest sense is to eliminate discrimination against individuals with disabilities. At least one court appears to focus on strictly interpreting the definition of “public accommodation.” And the third group has found middle ground.
Given the split of authority, this issue may make its way to the Supreme Court.