By: Eli Hill,

Under the Americans with Disabilities Act (“ADA”), private entities, including businesses and nonprofits, must provide individuals with disabilities equal access to the services they offer.[1]  When a private entity uses a space for a public gathering with the purpose of education, sales, recreation, or presentation, that service is considered a public accommodation.[2]  Since the dawn of the digital age, the courts have continued to grapple with whether website operations should be classified as a “public accommodation”.[3]

The  courts have been hesitant to classify any business operation within cyberspace as a public accommodation.[4]  At the time the ADA was enacted in 1990, society was not as reliant on the Internet as today.[5]  Listed examples of public accommodations in the policy itself only include services that are offered within “brick and mortar” buildings.[6]  As businesses extended their brands and marketing online, disability advocates pressed the courts to reconcile this shift against the ADA language and intentions.[7]

To date, business websites are still not counted as a public accommodation on its own.[8] However, the courts have found that websites which offer information on physical store locations are a beneficial support for the public accommodation provided in-store.[9]  Expanding this idea further, the courts are exploring the idea of websites as gateways to actual business interactions.[10]   The intangible barriers are earning attention alongside the tangible ones and so committees are again pushing for a more progressive analysis of the ADA.[11]

As the construction of websites grossly outpaces physical space constructions, the obstructions in access to the digital portals require equal attention.[12]  More and more companies continue to abandon the physical storefront model of operation and build their corporate strategies around purely web-based models. [13]  Accordingly, a dynamic interpretation of the ADA against an equally dynamic digital sphere will remain a necessary platform of judicial review.[14]

 

[1] 28 C.F.R. § 35. 104, 35.160 Lexis (Feb. 2, 2018)

[2] See U.S. Dept. of Justice: Civil Rights Div., Title III Technical Assistance Manual III-1 (2000), https://www.ada.gov/taman3.html.

[3] See Joseph L. Friedman & Gary C. Norman, The Norman/Friedman Principle: Equal Rights to Information and Technology Access, 18 Tex. J. on c.l. & c.r. 47, 48-9 (Fall 2012).

[4] Id. at 47.

[5] See id.

[6] See 42 U.S.C.S. § 12181 Lexis (Feb. 26, 2018) (listing out examples of public accommodations).

[7] See, Rendon v. Valleycrest Prods., 294 F.3d 1279, 1283 (11th Cir. 2002).

[8] See e.g., Gomez v. Bang & Olufsen Am., Inc., No. 1:16-cv-23801 LEXIS, 15457 (S.D. Fla. Feb. 2, 2017).

[9] See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); see also Earll v. Ebay, Inc., 599 F. App’x 695 (9th Cir. 2015) (finding that there must be a connection between the good and service offered by a public accommodation and an actual physical space).

[10] See generally Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) (comparing “brick and mortar” walls and websites as offering boundaries from which customers operate within).

[11] See Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) (referencing the need to address website accessibility).

[12] See Bradley Allan Arehart & Michael Ashley Stein, Integrating the Internet, 83 Geo. Wash. L. Rev. 449, 454 (Feb, 2015).

[13] See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (finding by jury trial for the first time the need to recognize websites as a nexus to the business operation).

[14] See id.

Image Source: https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/website-accessibility-disabilities-regulations-doj.aspx.