2003 UCLA J.L. & Tech. 6

Website Access For Customers With Disabilities: Can We Get There From Here?
by Nancy J. King1

I. Introduction

Two cases pending in federal courts demand that commercial websites provided by airlines for their customers be made accessible to people with disabilities.2In these cases, the plaintiffs, a disability rights group and a visually impaired individual representing the class, argue that Title III of the Americans With Disabilities Act of 1990 (ADA)3requires commercial airlines to make their websites compatible with screen reading programs that enable the visually disabled to access webpage content.4The crux of these cases is whether websites operated by commercial enterprises and open to the public are "place[s] of public accommodation," required by Title III of the ADA to be accessible to persons with disabilities.5At issue is whether private businesses that operate websites must comply with ADA accessibility mandates for public accommodations, a potentially costly and technically challenging obligation for e-commerce businesses. For people with disabilities, access to websites in order to conduct business via the Internet is critical to achieving "full and equal"6enjoyment of an important component of contemporary society: the ability to participate in commerce via the Internet.7Central to the debate surrounding how Title III of the ADA applies to commercial websites is whether places of public accommodation are restricted to physical places.8

This article examines whether Title III of the ADA applies to websites operated by private businesses that offer goods and services to the public on the Internet. First, the paper provides an overview of the coverage of Title III, including statutory provisions, regulations, and cases that define the scope of Title III. Second, the paper discusses two pending cases that test the application of the ADA’s public accommodation provisions to websites operated by commercial airlines for online ticketing and other customer services. The third section analyzes the strengths and weaknesses of the two test cases, including arguments specific to websites operated by the commercial airline industry. The fourth section examines the broader arguments related to access by disabled customers to commercial websites, including arguments that go beyond the context of the commercial airlines test cases. In addition, this section applies principles of statutory construction to Title III, analyzes recent developments on the meaning of place of public accommodation, provides an international law perspective, and explores the technical feasibility of making commercial websites accessible to people with disabilities. Finally, the article concludes that the correct answer to the question of whether Title III should be construed to cover at least some commercial websites offering goods and services to the public is "yes".

II. The Scope of Title III:
Access by People With Disabilities to Places of Public Accommodation

Title III of the ADA prohibits discrimination 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 owners, lessors, lessees, or operators of a place of public accommodation."9As Congress stated in "findings of fact" included in the ADA: "[I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, [and] the discriminatory effects of architectural, transportation, and communication barriers.10Some of the more subtle forms of disability discrimination addressed by Title III include: "…overprotective rules and policies, failure to make modification to existing facilities and practices, and relegation to lesser services, programs, activities, benefits, jobs, and other opportunities."11The ADA seeks to prevent and remedy these very sorts of discrimination.12

The meaning of two terms, "public accommodation" and "place of public accommodation," are key to determining coverage of Title III.13A place of public accommodation is a facility, operated by a private entity, whose operations affect commerce and fall within at least one of twelve categories listed in the statute.14The examples of facilities listed in each category in the statute are only examples and are not intended to identify all covered facilities.15A public accommodation, on the other hand, is the private entity that owns, leases, leases to, or operates a place of public accommodation.16A business that operates a place of public accommodation is governed by the nondiscrimination rules in Title III only to the extent that it is operating a place of public accommodation.17Not all businesses are public accommodations. For example, a wholesaler that sells only to other businesses and does not serve the public, is not public accommodations under Title III.18So, when a business grows food produce and supplies its crops exclusively to food processing corporations on a wholesale basis, it is not a public accommodation because it does not serve the public.19However, if that wholesaler also operates a roadside stand where its crops are sold to the public, the roadside stand is a "sales establishment" that is open to the public; it is a category of "place of public accommodation" that is expressly covered by the ADA.20In this example, the wholesale business that operates the roadside stand is a public accommodation and is covered by Title III’s nondiscrimination rules to the extent of its operation of the roadside stand.21But the wholesale business’s other business operations, which are not open to the public, are not covered by Title III.22

Are "place[s] of public accommodation" limited to physical facilities? Courts have been split on this issue.23These cases are the foundation for the inevitable cases that will consider whether Title III applies to goods and services offered to the public via the Internet, including the two current cases involving websites operated by commercial airlines for their customers.24

A. Places of Public Accommodation Are Limited to Physical Places

Three federal Circuit Courts have expressly or impliedly held "place[s] of public accommodation" are limited to physical places. In Stoutenborough v. National Football League, the Sixth Circuit Court of Appeals held the National Football League and broadcasters did not violate Title III of the ADA by refusing to provide televised access for hearing impaired persons to "blacked out" football games.25In Stoutenborough, the Sixth Circuit held Title III of the ADA only applies to access to "places" of public accommodation, based on the plain language of the statute and regulations.26The court noted that these regulations further define "place" as a "facility" operated by a private entity, and define "facility" in terms of buildings, structures, and other real or personal property,27implying that "place of accommodation" is limited to physical places.28Also in Parker v. Metropolitan Life Insurance Co., the Sixth Circuit held an employee benefit plan was not covered by Title III where the plan was not available to the public through the insurer’s offices, but rather was offered as an employee benefit.29Parker stated: "The clear connotation of the words in Section 12181(7) is that a public accommodation is a physical place. Every term listed in Section 12181(7) and subsection (F) is a physical place open to public access."30Likewise the Third and Ninth Circuits have held Title III of the ADA only refers to physical "place[s] of public accommodation."31

A close examination of these cases reveals that these circuit courts reached the issue of whether the scope of Title III is limited to physical places only after deciding Title III was inapplicable to these cases for other reasons. Stoutenborough was resolved when the court found a TV broadcast of a football game was not a "service" offered by the football stadium. It is the only place of public accommodation in the case and it is not the defendant.32The other three circuit court cases involved employee disability insurance benefit plans that were marketed by insurance companies to employers rather than the public.33In two of these insurance cases, the court held employee benefit plans are covered by Title I of the ADA, which covers disability discrimination by private employers, rather than Title III of the ADA.34In the third insurance case, the Ninth Circuit noted that neither party in the case had raised the question of whether the plaintiff had the ability to bring a claim regarding an employment relationship under Title III, which the court said was doubtful in light of its decision in a recent case.35

These cases are meaningful for another reason. Several of the cases have been cited as authority that Title III does not apply unless there is a "nexus" between a physical place of public accommodation and the good or service that the individual with a disability desires to access.36The requirement of a nexus is discussed in a later section of this paper.37

Because the decisions involving the meaning of "place of public accommodation" were initially resolved on other grounds and do not involve e-business activities, they are weak authority to exclude e-business facilities from the scope of Title III on the basis that Title III only applies to physical places.

B. Places of Public Accommodation Include Physical and Non-Physical Places

In Carparts Distribution Ctr. v. Automotive Wholesaler’s Ass’n, the First Circuit Court of Appeals held "place[s] of public accommodation" may include non-physical places.38Carparts held Title III mandates nondiscriminatory access for the disabled to businesses that offer their goods and services to customers by communications services such as phone, mail or even the Internet; even if the business does not have physical facility that is open to the public.39Carparts held the trial court erred when it interpreted the term "public accommodation" under Title III to be limited to "actual physical structures with physical boundaries which a person physically enters for the purpose of utilizing the facilities or obtaining services therein."40Carparts concluded that the plain meaning of the terms in the statute do not require "public accommodations" to have physical structures for persons to enter:

[B]y including "travel service" among the list of services considered "public accommodations," Congress clearly contemplated that "service establishments" include providers of services which do not require a person to physically enter an actual physical structure. Many travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services… It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.41

According to the First Circuit: "[e]ven if the meaning of ‘public accommodations’ is not plain, it is, at worst, ambiguous. This ambiguity, considered together with agency regulations and public policy concerns, persuades us that the phrase is not limited to actual physical structures."42The court concluded its analysis of the scope of Title III as follows:

Neither Title III nor its implementing regulations make any mention of physical boundaries or physical entry. Many goods and services are sold over the telephone or by mail with customers never physically entering the premises of a commercial entity to purchase the goods or services. To exclude this broad category of businesses from the reach of Title III and limit the application of Title III to physical structures which persons must enter to obtain goods and services would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages, available to other members of the general public.43

The Seventh Circuit also takes the position that "place of public accommodation" include non-physical places.44In Doe v. Mutual of Omaha Ins. Co., Judge Posner, examined the scope of Title III and concluded:

Title III of the Act, in [S]ection 302(a), provides 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 the owner, lessee, or operator of such a place. The core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility, and once in, from using the facility in the same way that the nondisabled do.45

Commentators have labeled this statement "dicta" to the extent that it provides an opinion that the plain meaning of place of public accommodation includes websites and other facilities in physical space or electronic space that are open to the public.46

In yet another insurance case, the Second Circuit also followed Carparts:

Title III’s mandate that the disabled be accorded "full and equal enjoyment of the goods, [and] services … of any place of public accommodation," suggests to us that the statute was meant to guarantee them more than mere physical access…. We believe an entity covered by Title III is not only obligated by the statute to provide disabled persons with physical access, but is also prohibited from refusing to sell them its merchandise by reason of discrimination against their disability. … We find no merit in Allstate’s contention that, because insurance policies are not used in places of public accommodation, they do not qualify as goods or services "of a place of public accommodation." The term "of" generally does not mean "in," and there is no indication that Congress intended to employ the term in such an unorthodox manner in Section 302(a) of Title III.47

All the cases discussed above involve insurance policies with different terms for disabled persons than provided for non-disabled persons.48Only Carparts states that it involves insurance sales that were not offered to the public through a physical insurance office, although this could well have been the case in Doe and Pallozzi as the facts are not included in the reported decisions.49Although these cases generally support the inclusion of e-business websites within the scope of Title III, they were not decided based on this issue. Thus, these cases leave unresolved the question of Title III’s application to private businesses that sell products or services to customers over the Internet or via other intangible facilities such as the telephone.50

C. Title III Covers Off-Site and On Premises Barriers That Limit Access to Tangible Places

The Eleventh Circuit Court of Appeals adopted a third view of the scope of Title III that falls somewhere between the views of Title III described in Sections A and B previously. In Rendon v. Valleycrest Productions, Ltd.., the Eleventh Circuit held Title III applied to a communications barrier that discriminatorily excluded disabled persons from being contestants on a televised game show.51The communications barrier in Rendon was an automatic telephone communications system that used a "fast finger process" to initially select members of the public who called into the phone system seeking to be contestants on the televised quiz show.52The plaintiffs in Rendon included persons with hearing or mobility impairments who were effectively screened out from the contestant selection process by the automatic telephone selection process.53The defendants in Rendon included the producers of the network television quiz show, "Who Wants to be a Millionaire."54Rendon held the defendants violated the ADA by maintaining a communication barrier to the disabled in the form of an inaccessible telephone selection process for the show’s contestants.55According to the court:

A reading of the plain and unambiguous statutory language at issue reveals that the definition of discrimination provided in Title III covers both tangible barriers … and intangible barriers … that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges.56

Unlike Carparts, Rendon did not hold that the definition of "place of public accommodation" in Title III includes non-physical places.57In fact, Rendon expressly stated that "this appeal involves only the question of whether Title III encompasses a claim involving telephonic procedures that, in this case, tend to screen out disabled persons from participation in a competition held in a tangible public accommodation."58However, the Eleventh Circuit’s decision is important because the court expressly concluded that the communication or other barriers need not be tangible, and that they may be located off-site from a tangible place of public accommodation.59Thus, Rendon provides a much broader view of the scope of the public accommodation provisions of Title III than circuit courts that have construed the scope of Title III to be limited to issues involving physical access to physical places.60However, even the circuit cases that favor an interpretation of Title III to include physical and non-physical places provide only weak authority for the applicability of Title III to commercial websites, as discussed previously.

The U.S. Supreme Court has not yet decided a case involving a claim that the public accommodation provisions of Title III govern access to goods, services, privileges and other advantages that are offered to the public over the phone, through the mail, or on the Internet. However, the U.S. Supreme Court recently interpreted Title III of the ADA in PGA Tour, Inc. v. Martin, a case involving accessibility of professional golf tournaments in light of rules that operated as a barrier to exclude a golfer with a physical impairment.61PGA Tour, Inc. is discussed later in this paper for the insights it offers into the scope of Title III, particularly as it relates to statutory construction of the term "place of public accommodation."62

III. Recent Litigation Against Airline Companies:
Web Customers Demand Accessible Website Design

Two pending federal cases directly raise the issue of the application of the ADA’s public accommodation provisions to websites, and provide a factual context for analyzing the applicability of Title III to websites offering goods or services to the public.63Thus the cases can be viewed as "test" cases, testing the scope of Title III. The facts of these cases are nearly identical, involving claims of inaccessible websites operated by Southwest Airlines and American Airlines for their customers.64In both cases, the plaintiffs are Robert Gumson, a blind individual who uses a screen reader65to "read" information on websites, and Access Now, Inc., a non-profit advocacy organization for disabled individuals.66The plaintiffs sued the commercial airline companies under Title III claiming the airlines operated websites that were not accessible to visually disabled customers who use screen readers.67

The plaintiffs argue that Title III of the ADA applies to the websites operated by Southwest Airlines and American Airlines for their customers and it requires defendants to modify customer websites to enable access by screen readers.68Through the use of screen readers, software programs that enable visually impaired persons to listen to the web in lieu of reading web pages or viewing web images, plaintiffs seek to make online airline and hotel reservations, purchase e-tickets at the lowest discounted rates offered only online, and access other travel related goods and services offered on the sites.69

Plaintiffs claim Southwest Airline’s website is inaccessible to screen readers in four specific ways:

1) Failing to label graphics by providing "alternative text" (alternative text enables screen reader programs to communicate via synthesized speech that is visually displayed on websites);

2) Inadequately labeling data tables with headers for rows and columns;

3) Failing to provide online forms that can be readily filled out by visually disabled customers; and

4) Failing to provide a "skip navigation link" that facilitates access for blind consumers by permitting them to bypass the navigation bars on a website and to proceed to the main content.70

Plaintiffs claim these design defects in Southwest Airlines’ website violate four different provisions of Title III of the ADA:

1) The communication barriers removal provision (Count I);71

2) The auxiliary aids and services provision (Count II);72

3) The reasonable modifications provisions (Count III);73and

4) The full and equal enjoyment and participation provisions (Count IV).74

To date, a trial has not been held in either of the test cases. In the federal district court for the Southern District of Florida, Southwest Airlines filed a motion to dismiss the case, claiming Title III does not apply to its website, Southwest.com.75After a hearing on the motion, the district court granted the motion and dismissed the plaintiffs’ case for failure to state a legal claim.76Judge Seitz held the question of whether Title III of the ADA mandates that Internet websites operators modify their sites so as to provide complete access to visually impaired individuals was a question of first impression in the Eleventh Circuit, namely:

Whether Southwest’s Internet website, [S]outhwest.com, is a place of public accommodation as defined by the ADA, and if so, whether Title III of the ADA requires Southwest to make the goods and services available at its "virtual ticket counters" accessible to visually impaired persons.77

Judge Seitz granted Southwest Airlines’ motion to dismiss, ruling that plaintiffs failed to state a claim upon which relief can be granted under Title III of the ADA:

[B]ecause the Internet website, [S]outhwest.com, does not exist in any particular geographic location, Plaintiffs are unable to demonstrate that Southwest’s website impedes their access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency. Having failed to establish a nexus between [S]outhwest.com and a physical, concrete place of public accommodation, Plaintiffs have failed to state a claim upon which relief can be granted under Title III of the ADA.78

Having dismissed the Southwest Airlines case for failure to state a claim, the trial court did not address the specific counts of discrimination in the complaint.79

In the American Airlines case, American Airlines also filed a motion to dismiss the case on grounds nearly identical to the defendant’s motion to dismiss in Southwest Airlines.; however, the court has stayed the action pending the outcome of the appeal in the Southwest Airlines case.80This paper now focuses on the appeal of the trial court’s decision in the Southwest Airlines case.

Following dismissal of the Southwest Airlines case, Plaintiffs appealed to the Eleventh Circuit Court of Appeals.81Currently, the parties and amici curiae have filed appellate briefs in Southwest Airlines with the Eleventh Circuit.82Oral arguments will be made in the case in on November 6, 2003.83For the first time since the ADA was enacted in 1990, a federal Circuit Court may soon decide whether Title III of the ADA applies to a commercial website.84Even if a settlement is eventually reached and no decision rendered, the briefs filed by the parties and amici curiae provide fascinating insight into the arguments for and against construing Title III to cover commercial websites.

The sole issue on appeal in the Southwest Airlines case is the scope of Title III. Plaintiffs argue Southwest, not merely Southwest.com, is a public accommodation that is prohibited by Title III of the ADA from discriminating against people with disabilities in the provision of services offered on its website.85They seek to reverse the federal district court’s decision that dismissed this case for failure to state a claim and remand this case for further proceedings.86

The primary argument on appeal is that Southwest Airlines Co. is a "travel service" and a public accommodation under the definition of "place of public accommodation" in Title III.87To support their contention, plaintiffs state that Southwest Airlines:

[O]ffers ticketing information/reservations and purchasing of airline, hotel and car-rental services, and many other services exclusively through its website …. Southwest’s website permits sighted consumers to take advantage of the company’s internet only discounted sales and promotions by accessing its "click ‘n save" and "rapids rewards" travel related programs (citations omitted).88

Plaintiffs offer the dictionary definition of "travel agency" to explain the meaning of the statutory term "travel service," arguing that the primary service offered by a travel agency/service is information about travel and reservations.89Plaintiffs also argue that Southwest, via its website, does not simply offer information and reservations for travel on its own airplanes; rather it "permits the booking of reservations and payment for a host of hotel and rental car facilities throughout the United States."90Plaintiffs claim "travel services, such as Southwest, have a duty to ensure that they take such steps as may be necessary to ensure that persons who are blind are not treated differently than the able bodied in the provision of appropriate information and services."91

There are three prongs to Plaintiffs’ argument that their complaints are within the scope of Title III covers their complaints against Southwest Airlines:

1) Title III applies to services of a public accommodation that are offered off-site and through the Internet.92

2) Southwest’s Internet website has a nexus with a physical facility that is a place of public accommodation and therefore the travel services provided by Southwest on its website may not be provided in a discriminatory fashion.93

3) The fact that the ADA does not specifically mention services provided off-site through the Internet in the statutory definition of "place of public accommodation" does not restrict the ADA’s coverage.94

On appeal, Southwest Airlines denies that plaintiffs have stated a claim for relief under Title III, arguing that neither Southwest.com, nor Southwest Airlines Co. "in its entirety" is a place of public accommodation.95Southwest Airlines offers three reasons why its website, Southwest.com, is not a place of public accommodation under Title III:96

1) The plain language of the ADA and its regulations define twelve categories of "place[s] of public accommodation," which limits places of public accommodation to physical, concrete facilities.97Accordingly, the district court correctly held that Southwest.com, a website, does not fall into any of the categories of "place of public accommodation" because it is not a physical, concrete "facility."98

2) Plaintiffs cannot show that Southwest.com is a means of accessing the services of a physical, concrete space that is a public accommodation under Title III. In making this argument, Southwest Airlines distinguishes the Eleventh Circuit’s holding in Rendon, noting the off site telephone selection process that Rendon found violated the ADA limited access to a television studio, a physical place.99

3) Plaintiffs have failed to claim that they were denied access to services of a concrete, physical public accommodation as required under Title III, claiming instead that they were denied access to services offered exclusively on Southwest.com.100

Southwest Airlines also argues that Southwest Airlines Co. "in its entirety" is not a place of public accommodation for the following reasons:101

1) Plaintiffs’ newly asserted claim that Southwest Airlines, Inc. "in its entirety" is a place of public accommodation as a "travel service" is not properly before the court because it was raised for the first time on appeal.102

2) It does not matter whether the court considers plaintiffs’ claims to be based on Southwest.com or Southwest "in its entirety," the claims fail because they are not based upon the services of a physical, concrete place of public accommodation that is owned or operated by Southwest and subject to the ADA.103There are three separate parts to this argument:

a) Neither Southwest.com, nor Southwest, "in its entirety," is a "travel service" within the statutory definition of "place of public accommodation."104A "travel service" is nothing more than a short-hand reference to "travel agency facilities," and is not some intangible service that is unrelated to any physical location.105

b) Plaintiffs’ claims are not subject to the ADA because the ADA specifically excludes coverage of any airline-owned facilities that are the basis of plaintiffs’ Title III claims.106The Air Carrier Access Act (ACAA), not the ADA, prohibits disability discrimination by air carriers.107Thus, plaintiffs’ claims that ticket counters and kiosks at airports operated by Southwest Airlines are "place[s] of public accommodation" under the ADA fails because ACAA, not the ADA, applies to these transportation-related services.108

c) Finally, plaintiffs’ claims of denial of the services of Southwest.com to access travel services from third-party rental car facilities and hotels also fail as a matter of law.109Only owners, operators, lessors and lessees of the "place of public accommodation" are covered by Title III of the ADA.110Southwest Airlines does not own, operate, or lease the third-party rental car and hotel facilities, so it is not a public accommodation with respect to access of third-party services.111

With this background on the arguments made by the parties on appeal, this paper now analyzes the strengths and weaknesses of the arguments on two critical issues before the appellate court.

IV. Why The Pending Litigation Against Airline companies
May Not Succeed Under Title III

With the appeal of the Southwest Airlines case, a circuit court is finally poised to establish that determine whether Title III of the ADA covers e-businesses that market their goods and services on the Internet.112But what is the likelihood that the plaintiffs in Southwest Airlines will succeed in their effort to extend the coverage of Title III to the Internet? This section of the paper analyzes the strengths and weaknesses of the Southwest Airlines case, focusing on two fundamental arguments specific to this case - including an argument that relates only to websites operated for customers by businesses in the airline industry. Analysis of these two fundamental arguments explains why the plaintiffs in the Southwest Airlines case face some difficult challenges in their efforts to convince an appellate court that Title III applies to websites provided for customers of commercial airlines.

A. Procedural Weakness

First, the appeal has a procedural weakness. The Eleventh Circuit may refuse to listen to plaintiffs’ arguments by the plaintiffs that were not presented in the district court.113On appeal, plaintiffs claim Southwest Airlines is a "place of public accommodation" in the form of a "travel service," an extension of its argument in the trial court that Southwest.com is a public accommodation in the form of a travel service.114Essentially plaintiffs have refocused their Title III coverage argument from Southwest.com, a website, to the larger entity of Southwest Airlines Co.115Southwest Airlines argues the district court did not have an opportunity to address plaintiffs’ specific arguments now being made for the first time on appeal and it would be improper for the Eleventh Circuit to do so now.116

In situations where arguments have been "reframed" during the appeals process, it is within the discretion of the court to consider them for the first time on appeal when the arguments they are related to important issues.117For example, in PGA Tour, Inc., petitioner was allowed to reframe its argument related to the coverage of Title III at the U.S. Supreme Court level, even though respondent objected that the specific argumentit had not been made in the lower courts.118The record from the district court includes a transcript of oral argument on Southwest Airlines’ motion to dismiss, so the Eleventh Circuit will be able to evaluate whether these arguments were sufficiently raised in the complaint or in oral argument.119

Additionally, prevailing in this lawsuit on this procedural issue would be a hollow victory for the airline industry because the American Airlines case is still pending in the district court.120The American Airlines case was brought by the same plaintiffs who filed Southwest Airlines, and raises the same Title III claims.121If the Eleventh Circuit rules in favor of Southwest on this issue, presumably there will be an opportunity for plaintiffs in the American Airlines case to amend their complaint and reframe their arguments in the district court to avoid this procedural problem.

B. The ADA’s Air Carrier Exemption

A second hurdle for plaintiffs in the Southwest Airlines case relates specifically to the fact that this case involves disability discrimination claims by customers against an airline carrier, as opposed to disability discrimination claims against a business in some other industry that provides a website for its customers.122Because Southwest Airlines is in the airline transportation industry, Southwest Airlines argues that the Air Carrier Access Act (ACAA), not the Title III of the ADA, governs plaintiffs’ claims of disability discrimination.123

Essentially Southwest Airlines is asking the Eleventh Circuit to address the scope of the ADA’s exemption for air carriers.124If the plaintiffs’ claims in Southwest Airlines are covered by ACAA, but not the ADA (because they are exempt under the ADA due to coverage by ACAA), then the plaintiffs will not be successful in their efforts to overturn the district court’s dismissal of the case for failure to state a claim. However, a holding that Southwest Airlines’ websites are covered by ACAA and exempt from the ADA would leave unresolved the much more significant question that is the ultimate focus of this paper. That question is whether the scope of Title III covers websites for customers offered by businesses in the vast majority of industries that are clearly within the purview of Title III. This question is discussed in the next section of this paper.

The ACAA and the ADA exemption for air carriers that Southwest Airlines claims could defeat the plaintiffs’ claims in the case. The "air carrier" exemption in the ADA is found in the definition section of Title III. The definition of public accommodation includes "a terminal, depot, or other station used for specified public transportation."125The statute also provides a definition of "specified public transportation;" it "means transportation by bus, rail, or any other conveyance (other than by aircraft)" that is provided to the general public.126

Plaintiffs argue that Title III covers the provision of travel services at an airport because these services are analogous to other places of accommodation that have been found to be public accommodations in airports and covered by Title III.127Plaintiffs quote from the Preamble to the Title IIII regulations in support this view of the scope of Title III.128The Preamble to the Title III regulations states:

Privately operated airports are also included in the category of commercial facilities. They are not, however places of public accommodation because they are not terminals used for "specified public transportation." (Transportation by aircraft is specifically excluded from the statutory definition of "specified public transportation.") Thus, privately operated airports are subject to the new construction and alteration requirements of this rule (subpart D) but not to subparts B and C. (Airports operated by public entities are covered by title III of the Act.) Places of public accommodation located within airports, such as restaurants, shops, lounges, or conference centers, however, are covered by subparts B and C of this part.129

In support of its argument that plaintiffs’ disability discrimination claims are not covered by Title III because they are expressly exempt from Title III, Southwest Airlines points to discussion in the Preamble to the Title III regulations on the meaning of "specified public transportation":

The definition of "specified transportation" is identical to the statutory definition in Section 301(1)) of the ADA. The term means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis. It is used in category (7) of the definition of "place of public accommodation," which includes stations used for specified public transportation.

The effect of this definition, which excludes transportation by aircraft, is that it excludes privately operated airports from coverage as places of public accommodation. However, places of public accommodation located within airports would be covered by this part. Airports that are operated by public entities are covered by Title II of the ADA and, if they are operated as a part of a program receiving Federal financial assistance, by Section 504 of the Rehabilitation Act. Privately operated airports are similarly covered by Section 504 if they are operated as a part of a program receiving Federal financial assistance. The operations of any portion of any airport that are under the control of an air carrier are covered by the Air Carrier Access Act. In addition, airports are covered as commercial facilities under this rule.130

In Love v. Delta Airlines, the District Court examined the legislative history related to the air carrier exemption under Title III.131Senate and House Committee Reports support the view that Congress excluded transportation by air from Title III because ACAA had recently been enacted and was designed to address the problem of discrimination by air carriers against disabled individuals.132The District Court in Love held "Congress did not prohibit air carriers from discriminating against disabled individuals under the ADA because Congress considered that air carriers were already prohibited from doing so by the ACAA."133Although the District Court’s examination of the legislative history of the airline carrier exemption under the ADA is helpful in understanding the scope of the ADA and ACAA, Love was reversed by the Eleventh Circuit.134The Eleventh Circuit held ACAA does not provide a private right of action for claims of disability discrimination by air carriers and Love’s claims should be dismissed.135Additionally, Love involved only claims of disability discrimination related to accessibility of the services and equipment onboard an aircraft, as opposed to the broader claims of the plaintiffs in Southwest Airlines related to communications with customers via the Internet that are not related to accessibility of the aircraft itself.136

ACAA and Department of Transportation (DOT) regulations interpreting ACAA by the Department of Transportation’s (DOT) arguably cover disability-based discrimination related to communications between an air carrier and passengers about air transportation.137According to the DOT regulations, a qualified individual with a disability:

[M]eans an individual with a disability who – (a) With respect to accompanying or meeting a traveler, use of ground transportation, using terminal facilities, or obtaining information about schedules, fares or policies, takes those actions necessary to avail himself or herself of facilities or services offered by an air carrier to the general public, with reasonable accommodations, as needed, provided by the carrier; (b) With respect to obtaining a ticket for air transportation on an air carrier, offers, or makes a good faith attempt to offer, to purchase or otherwise validly to obtain such a ticket; (c) with respect to obtaining air transportation, or other services or accommodations required by this part ….138

The Air Transport Association of America, Inc. (ATA) provides insight into this argument through a brief as amicus curiae in the Southwest Airlines case.139ATA asserts that the ADA is poorly suited for the air transportation industry:

Unlike the ACAA, which was designed to address disability discrimination in the specific context of air travel, the ADA is general in scope and applies to a variety of public accommodations…. [T]he ACAA and its implementing regulations take into account considerations unique to the air transportation industry, such as Federal Aviation Administration requirements and air passenger safety.140

According to the ATA, regulations under ACAA cover "virtually all aspects of an air carrier’s operations and physical facilities – but not websites."141ATA points out that the ACAA regulations require provision of certain passenger services for the disabled, such as making its telephone reservation and information system available for persons with hearing impairments through the use of a telecommunications device for the deaf service.142

When plaintiffs’ claims in Southwest Airlines are viewed as claims of discriminatory communications services for passengers, Southwest Airlines has the stronger argument on the issue of whether ACAA, not the ADA, covers plaintiffs’ claims. This is because the regulation of airline transportation already covers at least some communications services for disabled passengers, including access to telephone reservation systems.143Surely the courts will find that ACAA, not the ADA, governs communications services for the disabled in the airline industry, rather than holding communications services for the disabled should be characterized broadly as "travel services" covered by Title III and not ACAA. Additionally, the air passenger safety argument is a strong public policy argument for specialized regulation under ACAA for the airline transportation industry, at least to the extent of recognizing the expertise of the Federal Aviation Administration and Department of Transportation in regulating airline passenger safety.144The exemption in the ADA of "air carriers" from "specified public transportation" that is covered by Title III, together with the guidance provided by Department of Justice in the Preamble to the Title III regulations and legislative history under the ADA, support the view that air carriers like Southwest Airlines are not covered under Title III as owners or operators of "place[s] of public accommodation."145In other words, Southwest Airlines cannot be a public accommodation without operating a "place of public accommodation," and Southwest Airlines is excluded from coverage because it has no facilities (physical or intangible) that are included in the definition of "specified public transportation".146

Additionally, if the Eleventh Circuit finds places of public accommodation are limited to physical places or to offsite communication barriers that are a nexus to physical places, plaintiffs are unlikely to prevail on their ADA claims. In this situation, plaintiffs’ ADA claims may depend on showing that the ADA’s air carrier exemption does not apply to the kiosks and ticket counters in airports operated by Southwest that offer travel services to the public, because these are the only tangible facilities that plaintiffs have alleged are places of public accommodation operated by Southwest.147It seems likely that the Eleventh Circuit will hold that the air carrier exemption covers Southwest Airlines operation of its kiosks and ticket counters in airports that offer travel services to the public. A narrow reading of the "aircraft carrier" exemption in light of the Preamble to the Title III regulations would extend the Title III aircraft carrier exemption only to services and facilities by an airline that are offered at an airport.148This conclusion is reached by starting with the Preamble and viewing all of plaintiffs’ allegations in plaintiffs’ favor. If, as the Preamble states: "[t]he operations of any portion of any airport that are under the control of an air carrier are covered by the Air Carrier Access Act," then the kiosks and ticket counters operated by Southwest Airlines in airports are covered by ACAA, and are not covered by the ADA.149The ticket counters and kiosks operated by Southwest Airlines are the only physical "nexus" that Plaintiffs have identified that ties the services on Southwest.com to a physical facility owned or operated by Southwest Airlines.150Therefore, if places of public accommodation are limited to physical places, or alternatively if a nexus between the services of a physical place of public accommodation and an offsite communication barrier is required for a Title III claim, it appears that plaintiffs will not prevail on this claim as a matter of law.151

Thus, the outcome of the Southwest Airlines case may or may not resolve the important issue of whether Title III applies to commercial websites that offer their services to the public. As a test case for this issue, the Southwest Airlines case is problematic for reasons specific to the defendant’s status as an air carrier. We now turn to the ultimate focus of this paper, whether Title III requires commercial websites operated by businesses in other industries to be accessible to people with disabilities.

V. Outside the Airline Transportation Industry: Applying Title III to Customer Website Design

This section of the paper examines the broader arguments related to access by disabled customers to commercial websites provided for customers that go beyond the context of the test cases involving websites operated by commercial airlines. This section applies principles of statutory construction to Title III, discusses recent developments related to other analogous civil rights laws, provides an international perspective, and explores the technical feasibility of making commercial websites accessible to people with disabilities. The analysis of the broader arguments included in this section leads to a conclusion that Title III covers commercial websites.

A. Applying Principles of Statutory Construction to the ADA’s Public Accommodation Provisions

The first step in construing a statute is to look at the language of the statute to determine whether it has a plain and unambiguous meaning.152Courts have applied two canons of statutory construction to find that the plain meaning of "place of public accommodation" is limited to physical places.153They are the canons of noscitur a sociis and ejusdem generis.154 "The canon of noscitur a sociis instructs that a term is interpreted within the context of accompanying words to avoid giving of unintended breadth to the Act of Congress."155"The canon of ejusdem generis instructs that when general words follow an enumeration of specific words, the general words are to be read as applying only to the same general kind or class as the specific words."156

Because the Attorney General has the authority to issue regulations that implement the ADA, courts may be required to defer to statutory constructions of the ADA by the Department of Justice.157Under the rules that govern agency deference, where Congressional intent is unambiguously expressed regarding the issue before the court, the agency’s construction receives no deference.158However "if the statute is silent or ambiguous regarding an issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute."159

The extent and weight that courts should give legislative history when construing a statute has not yet been resolved by the U.S. Supreme Court and is a subject of academic debate.160Some courts, including the First Circuit, have used legislative history to justify a broad interpretation of "place of public accommodation."161Other courts have found it is improper to examine legislative history when the plain meaning of the statute is apparent after applying canons of statutory construction like noscitur a sociis and there is no ambiguity to resolve.162

The courts have disagreed over whether the term "place of public accommodation" is ambiguous. The First Circuit found the meaning of "place of public accommodation" may be ambiguous.163Other courts have found the plain meaning of "place of public accommodation" in the statute,164including whether it is limited to physical places or is not limited to physical places, often examining the same statutory text to reach contrary conclusions.165

Commentators also disagree about whether the term "place of public accommodation" is ambiguous and whether it is appropriate to use legislative history to construe the meaning of the term. Several commentators agree with the courts that have held the plain meaning of "place of public accommodation" is evident from the text of the statute, and that the term is limited to physical places as described in the examples and categories in the statute.166As one such commentator stated:

[T]he text of Title III does not include websites as places of public accommodation. Noscitur a sociis and ejusdem generis dictate places of public accommodation must be physical facilities. The cannons also sufficiently resolve any alleged statutory ambiguities, thereby foreclosing the opportunity for contrary agency interpretations. Although the intentionally broad purpose and design of the ADA encourage advocates of online expansion, the same purpose and design limit Title III exclusively to physical facilities.167

Other commentators argue the meaning of "place of public accommodation" is not ambiguous in the statute, that congressional intent is apparent in the text of the statute, and the term is not limited to physical places.168Still other commentators argue the term is ambiguous in the text of the statute,169urging courts to resolve the ambiguity by looking at administrative interpretations and legislative history that supports a conclusion that Title III should be construed to cover nonphysical places where goods and services are offered to the public including commercial websites.170Some commentators have not analyzed whether the statute is ambiguous, but also urge courts to conclude that places of public accommodation are not limited to physical places.171

Commentators offer various arguments for construing Title III broadly to include non-physical places as "place[s] of public accommodation" within the scope of Title III:

1. Title III does not expressly state that places of public accommodation are limited to physical places, so courts should look to the purpose of the statute to construe its meaning.172Requiring a place of public accommodation to be a physical structure is contrary to clear Congressional intent "to bring individuals with disabilities into the economic and social mainstream of American life…. in a clear, balanced, and reasonable manner."173

2. Title III applies to facilities that are open to the public, whether "in physical space or electronic space."174In Doe, Chief Judge Posner correctly identified that the primary characteristic of a "place of public accommodation" is whether it is open to the public, not whether it is a physical or an electronic space.175Therefore the non-discrimination obligations of a public accommodation apply to physical and electronic entities that are open to the public.176

3. Title III does not require a public accommodation to have walk-in facilities.177If a business is otherwise a public accommodation, it maintains a physical space for administrative purposes, and it offers its goods and services exclusively through non-physical media, like the Internet or the telephone, it is arguably a "place of public accommodation."178So access to goods and services offered by telephone, mail, or Internet to the public by a business with a physical administrative facility is covered by Title III.179

4. Websites are not intangible facilities.180Websites are just like telephones – both are means of accessing goods and services.181One cannot walk into a telephone or a website, but both telephones and websites are tied to physical places that the public accesses to utilize the entity’s goods and services.182

5. The regulatory definition of "place of public accommodation" that limits the term to a facility and further limits facility to physical places is entitled to no deference by the courts because it is manifestly contrary to the statute.183

6. There is a fundamental difference between the issues in the insurance cases, where the terms of policies were often the focus, and applying Title III to access barriers by e-businesses that prevent disabled customers from even entering virtual facilities.184As one commentator explained:

[M]ost of the cases examining the requirement for a physical structure occur in the insurance context. Several of these cases look at the actual insurance product itself, and focus on whether the benefits offered can differ based on disability alone. While a number of courts have been reluctant to apply a Title III analysis to the insurance product itself, cases arising in the Internet context may be treated differently. Logging on to a website can be seen as analogous to traveling to a store; browsing the pages is much like browsing the shelves . . . The issue with websites, unlike the issue with insurance policies, is providing access to the bookstore itself – Amazon.com, for instance – and not about changing the nature of the products offered.185

B. Contemporary Insights on the Meaning of Place of Public Accommodation

Several recent developments provide insight into the scope of Title III and were not considered by courts and other commentators discussed in the previous section. These new developments that provide a contemporary insights include: 1) the U.S. Supreme Court’s decision in PGA Tour, Inc. that broadly construed Title III to include competitors in PGA golf tournaments;1862) the Eleventh Circuit’s decision in Rendon that expressly addressed off-site communication barriers to physical places of public accommodation;187and 3) the interpretations of courts and administrative agencies concerning website accessibility under analogous civil rights laws and other Titles of the ADA.188These recent developments provide current input in the debate about the scope of Title III and the correct statutory construction of "place of public accommodation." These recent developments further support the conclusion of this paper that Title III is applicable to least some commercial websites.

1. The U.S. Supreme Court’s Decision in PGA Tour, Inc. v. Martin

In PGA Tour, Inc. v. Martin, the U.S. Supreme Court held Title III protects access to professional golf tournaments by a qualified competitor with a disability, rejecting the arguments of the defendants that Title III only covers spectators at its tournaments.189The Court’s analysis of the statutory construction of the meaning of "place of public accommodation" in PGA Tour, Inc. is the Court’s most recent guidance on the scope of Title III.190It strongly supports a conclusion that Title III should be broadly construed to provide access for the disabled to commercial facilities.

In PGA Tour, Inc., the Court began its analysis of the scope of Title III by discussing the purpose of the ADA:

Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem … see § 12101(a)(3) ("Discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations…). Congress noted that the many forms such discrimination takes include "outright intentional exclusion" as well as the "failure to make modifications to existing facilities and practices." After thoroughly investigating the problem, Congress concluded there was a "compelling need" for a "clear and comprehensive national mandate" to eliminate discrimination against disabled individuals, and to integrate them "into the economic and social mainstream of American life."191

Summarizing the Congressional purpose of the ADA, the Court stated:

In the ADA, Congress provided that broad mandate. In fact, one of the Act’s "most impressive strengths" has been identified as its "comprehensive character"…. To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them … public accommodations (Title III).192

The Court then turned to Title III of the ADA and the construction of the phrase "public accommodation."193According to the Court: "The phrase ‘public accommodation’ is defined in terms of 12 extensive categories, which the legislative history indicates ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled."194The Court characterized the definition of public accommodation as "comprehensive," finding the ADA covered Martin as a competitor and covered the golf tours:

It seems apparent, from both the [ADA’s] general rule and the comprehensive definition of "public accommodation," that petitioner’s golf tours and their qualifying rounds fit comfortably within the coverage of Title III, and Martin within its protection."195

The Court commented that the petitioner in the case "leases" and "operates" golf courses to conduct its tours.196"As a lessor and operator of golf course, then, petitioner must not discriminate against any ‘individual’ in the ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations’ of those courses."197The court stated that among the ‘privileges’ offered by petitioner on the courses is playing in the golf tours, holding "Title III of the ADA, by its plain terms, prohibits petitioner from denying Martin equal access to its tours on the basis of disability."198

By express language in PGA Tours, Inc., the Court states that the scope of Title III is to be construed by reading the general non-discrimination rule in Title III and the definition of "public accommodation" together, in light of the broad mandate Congress provided to remedy disability discrimination in all major areas of public life, including public accommodations.199

However, PGA Tour, Inc. did not address the question of whether Title III is applicable to entities that operate without physical facilities, such as virtual places of business that solicit customers via the Internet, phone or mail communications.200Unlike these virtual places, golf courses are physical places, and are specifically listed as a "place of public accommodation" under the ADA.201Also, because the petitioners in PGA Tour, Inc. admitted that their professional golf tournaments were held on golf courses that they leased or operated, the Court was not obligated to decide whether defendants were owners or operators of public accommodations under the ADA.202

Are the decisions from Circuit Courts that have construed Title III to apply only to physical places inconsistent with the Title III analysis in PGA Tour, Inc.?203The answer to this question is yes. These cases narrowly construed Title III to hold that only physical places are within the statutory definition of "public accommodation."204They did not examine the scope of "public accommodation" or "place of public accommodation" within the context of the broad Congressional intent that the Court in PGA Tour, Inc. said had been articulated by Congress in the ADA and in Title III’s general nondiscrimination rule.205Furthermore, these Circuit Court cases did not involve websites offering their goods or services to the public on the Internet, and were initially resolved on different grounds.206For all of these reasons, these Circuit Court cases provide weak authority for the current discussion of whether Title III covers customer websites and should be broadly read to include websites consistent with the analysis of Congressional intent in PGA Tour, Inc.

The U.S. Supreme Court’s recent analysis of cases interpreting the scope of other Title II of the ADA also supports a broad interpretation of the scope of Title III. In PGA Tour, Inc., the Court discussed Pennsylvania Dept. of Corrections v. Yeskey, where the Court held that Title II of the ADA’s prohibition of discrimination against disabled individuals "unmistakably includes state prisons and prisoners within its coverage."207Title II of the ADA prohibits disability discrimination by public entities, but did not expressly list state prisons or programs for prisoners such as boot camps for first time offenders.208Yet the Court found the state prisons and programs were covered by Title II of the ADA consistent with legislative intent that was plainly stated in Title II.209

Applying the analysis of cases that construe other Titles of the ADA to interpret the scope of Title III may have limitations, however. Unlike Title III, Title II of the ADA is not restricted to "public accommodations" and does not define "public accommodations."210For this reason courts may construe Title III in light of other federal civil rights laws that also limit coverage to public accommodations.211For example, in the analysis of whether participants in a sport are protected by Title III, PGA Tour, Inc. discussed cases involving allegations of race discrimination in public accommodations under Title II of the Civil Rights Act of 1964 (Title II of the CRA).212Courts have broadly construed the public accommodation provisions of Title II of the CRA to cover participants as well as spectators.213PGA Tour, Inc. found the cases interpreting Title II of the CRA persuasive on the issue of whether Title III included participants as well as spectators within its protections, while noting differences in the definitions under Title III of the ADA and Title II of the CRA.214Specifically, the Court in PGA Tour, Inc. noted that, unlike Title III of the ADA, Title II of the CRA includes "place of exhibition or entertainment" in its definition of "public accommodation," but does not specifically list "golf course" as an example.215Given the broad Congressional intent found in Title III of the ADA as explained in PGA Tour, Inc., Title III’s failure to expressly list commercial websites for customers as examples of public accommodations may not be fatal to a Title III claim involving a commercial website. At a minimum, the scope of Title III as it relates to websites should be construed in light of recent U.S. Supreme Court cases, as opposed to the narrow construction of Circuit Court cases discussed earlier in this paper.

2. Rendon, Communication Barriers, and the Nexus Theory

Assuming the correct construction of "place of public accommodation" is limited to physical facilities, it is still possible to argue Title III encompasses the use of the mail, telephone systems and websites to do business with the public.216Assume a business has a "brick and mortar" facility that is a "place of public accommodation," and it operates a website where it also offers goods and services to the public. Under existing case law in several circuits, the business may be required to comply with Title III under the theory that there is a "nexus" between the goods or services offered on the website and the physical facility.217The Eleventh Circuit’s recent decision in Rendon illustrates the application of the nexus theory in the context of an automated telephone answering system that operates as a communications barrier between disabled individuals and the physical place of public accommodation.218As discussed earlier in this paper, Rendon held the automated phone answering system operated to exclude individuals with hearing and mobility impairments from becoming contestants on the game show, which is held in a physical place, a TV studio.219In a similar situation involving a website, where a nexus exists between the website and a place of public accommodation and the website operates as a barrier to the place of public accommodation, Title III may apply and the public accommodation may have an obligation to make its communications system, including a website, accessible to people with disabilities.220

At first blush, the nexus theory seems to create a very large opening for plaintiffs to challenge inaccessible websites as communication barriers to brick and mortar businesses. Today, any business that is open to the public, affects commerce, and is listed in the statutory definition of "place of public accommodation" is also likely to have a website for its customers.221

But must the customer using a commercial website also seek to physically enter the place of public accommodation by virtue of the public accommodation’s website in order to be covered by Title III? Prior to PGA Tour, Inc. and Rendon, several commentators argued that Title III only covered physical access to place of public accommodation.222The facts in PGA Tour, Inc., involved golf competitions that were held in physical places, and it provides no insight on this question.223The Eleventh Circuit’s recent decision in Rendon, which expressly limited its holding to a situation where plaintiffs sought to enter a tangible facility to compete on a game show, also provided no insight on this question.224

In sum, at a minimum, the nexus theory supports Title III coverage of websites provided by businesses that facilitate access by customers to the brick and mortar facilities of those businesses. For this reason, this paper concludes that at least some commercial websites are within the scope of Title III. The recent court cases, however, do not preclude a broader interpretation of Title III to cover commercial websites for customers that are unconnected to brick and mortar places of business.

3. Accessibility and Websites Outside the Context of Title III

Outside the context of Title III, courts and administrative agencies have addressed the applicability of federal discrimination statutes to virtual spaces. Some of these decisions support construction of Title III to cover customer websites.

One case involved web accessibility issues related to a website for customers that is factually similar to the Southwest Airlines case, although it involved public transportation provided by a public as opposed to a private entity. In Vincent Martin v. Metro Atlanta Rapid Transit Authority (MARTA), the district court for the Northern District of Georgia held disabled users of a municipal mass transit system were entitled to a preliminary injunction against MARTA for its failure to make its website accessible to the visually disabled under Title II of the ADA.225In Vincent Martin, the plaintiffs’ claimed MARTA violated Section II of the ADA by providing schedule and route information to the public via a website that was not equally accessible to people with visual disabilities.226Although MARTA also provided information about particular routes and schedules by telephone to the visually disabled, Vincent Martin held the telephone service was not equivalent to the service MARTA provided to the general public, and that MARTA could do a lot more to make its website accessible to people with visual disabilities.227Vincent Martin held MARTA must format its website to be accessible for persons who are blind but who are capable of using text reader computer software.228Despite the very similar factual situation between the customer websites of MARTA and Southwest Airlines, the district court in Southwest Airlines rejected the plaintiffs’ argument that the court should consider Vincent Martin as authority to hold that Title III requires accessible customer websites.229Southwest Airlines held that because the claims against MARTA were against a public entity, Vincent Martin is inapplicable.230

Another recent case also involves the definition of public accommodation under Title III. In Noah v. AOL Time Warner, Inc., a federal district court for the Eastern District of Virginia dismissed claims of religious harassment by a participant in an online chat room hosted by America Online, Inc. (AOL), an Internet Service Provider (ISP).231In Noah, Plaintiff, a Muslim, claimed AOL was liable for the online harassment under Title II of the Civil Rights Act of 1964 (CRA of 1964).232The federal district court dismissed the plaintiff’s Title II claims on two separate grounds.233First, Noah held AOL, as an ISP, has statutory immunity against Title II claims under the Communications Decency Act of 1996 (CDA).234Under the CDA, ISP’s have statutory immunity for state and federal claims that relate to the ISP’s role as a "publisher" of statements made by third parties on interactive computer services supplied by the ISP.235Second, in the alternative, Noah dismissed the plaintiff’s Title II claims on the basis that a chat room is not a "place of public accommodation" under Title II of the CRA.236In reaching this second holding, Noah examined cases under Title II of the CRA and under Title III of the ADA that have considered whether a "place of public accommodation" must be a physical place.237In this context, Noah discussed the district court’s decision in Southwest Airlines.238Noah recognized that the Circuit Courts are split on this issue under Title III of the ADA, but held that under Title II of the CRA, "place[s] of public accommodation" are limited to physical places and do not include online chat rooms.239

Noah, unlike Vincent Martin, is not factually similar to the Southwest Airlines case for several reasons. First, Noah does not involve claims of inaccessible website content and website design, but rather involves claims of online discrimination and harassment by users of a website. Second, Noah involves claims against an ISP, where statutory immunity has expressly been granted to ISPs in light of their role as a system provider for communications between other parties. In contrast, Vincent Martin applied Title II to web access issues arising from the design of customer websites that are nearly identical to those raised in Southwest Airlines, and the reasoning of the court in Vincent Martin supports the construction of Title III, like Title II, to encompass customer websites.

Administrative agency guidance under Title I of the ADA also supports a construction of Title III to include commercial websites. The Equal Employment Opportunity Commission (EEOC) administers claims of employment discrimination including disability discrimination under Title I of the ADA.240The EEOC is cognizant of pending litigation against Southwest Airlines related to the accessibility of its website.241In response to an anonymous question from an employer with a website used to post job openings and accept job applications, the EEOC issued a policy letter in which it stated that an employer may have to provide an accessible website for users who are visually impaired if the user requests an accommodation.242In its policy letter, the EEOC referenced the Southwest Airlines case, indicating that the issue of whether an employer must provide an accessible website is still evolving.243

C. An International Perspective on Accessible Website Design

Accessible website design is being advanced on an international basis. The United Nations General Assembly adopted the Standard Rules on the Equalization of Opportunities of Persons with Disabilities (Standard Rules) in 1993:244

Rule 5 of the Standard Rules addresses accessibility in terms of the physical environment and with reference to information and communications services. Among other points, Rule 5 recommends that: ‘states … develop strategies to make information services and documentation accessible for different groups of persons with disabilities.’245

The Standard Rules are not legally binding, but rather encourage governments to take action to promote equal opportunities for people with disabilities, including accessibility of information and communications services.246

Several countries have issued policy statements that encourage accessible website design by government and/or commercial websites. For example, Australia, Canada and Portugal have issued such policy statements; however, they primarily address accessibility of government websites.247

Unlike most other countries that have only issued policy statements, the U. S. has legislation that requires federal government websites and other electronic and information technology to be accessible for people with disabilities.248Under Section 508 of the Rehabilitation Act of 1973 (Section 508), all U.S. federal agencies must comply with the accessibility standards set by the Architectural and Transportation Barriers Compliance Board (U.S. Access Board).249Section 508 applies to all electronic and information technology that is developed, procured, maintained, or used by the federal government and requires that such electronic and information technology be accessible to people with disabilities.250The U.S. approach that requires the U.S. Access Board to set standards for accessibility of electronic and information technology used by the federal government contrasts with the approach of other countries that have deferred to the leadership of the World Wide Web Consortium (WC3) and the accessibility standards found in its Web Accessibility Initiative.251The U.S. Access Board issued a final administrative rule on electronic and information technology and accessibility standards (final rule), which became was effective in June 2001.252The final rule covers web-based Intranet and Internet information and applications.253Although the final rule does not adopt the Web Content Accessibility Guidelines that have been recommended by the W3C, the rule does reference them.254Other developing countries, including Canada and the European Union, use the W3C’s Web Accessibility Initiative (and its Web Content Accessibility Guidelines) as the source of reference material regarding new technologies and developments for accessible web design.255

As described above, countries with policies or laws that mandate or encourage accessible websites and these policies or laws generally focus on government operated websites, as opposed to websites provided by businesses for their customers. Australia is a notable exception because it requires private websites that offer services to the public to be accessible. In Maguire v. Sydney Organizing Committee For the Olympic Games (SOCOG), the Australian Human Rights and Equal Opportunity Commission found the SOCOG discriminated against a blind user of its website when it failed to make the site accessible to him in accordance with the W3C’s Web Content Accessibility Guidelines.256Maguire, the plaintiff in the case, who is blind, complained that the SOCOG discriminated against him on the basis of his disability because the SOCOG’s websites for the Sydney 2000 Olympic Games were not accessible in compliance with the W3C’s Web Content Accessibility Guidelines.257As defenses, the SOCOG asserted that it had made the website accessible with respect to two of Maguire’s complaints in the interim between the time that the complaint was filed and the date of the hearing, and that it would be an unjustifiable hardship for it to make the site accessible as to Maguire’s third complaint.258In contrast to the U.S. cases involving claims of disability discrimination related to inaccessible websites provided by businesses for their customers, Maguire’s case was not dismissed without a hearing.259The Australian Human Rights & Equal Opportunity Commission (Australian HREOC) fully analyzed Maguire’s claims of disability discrimination under Australia’s disability discrimination statutes that closely resemble Title III of the ADA.260Like Title III of the ADA, Australia’s disability discrimination statute prohibits disability discrimination by facilities that provide services, including entertainment and recreation services, and makes no reference to the Internet or websites.261Yet the Australian HREOC found the DDA applicable to the SOCOG’s websites and held the sites had discriminated against Maguire:

[C]omplainant was clearly the recipient of less favorable treatment by the respondent in that he was unable to access the services offered by the respondent by means of its web site or at best he was offered imperfect or limited access only because of the manner in which the services were made available and this less favorable treatment was because of his disability.262

The Australian HREOC also rejected the SOCOG’s unjustifiable hardship defense, in part based on expert testimony including the testimony of an expert who chaired the Authorizing Tool Guidelines Group of the W3C.263The Australian HREOC concluded that provision of an accessible website for the complainant and other vision impaired persons would constitute a very considerable benefit to them, enabling access to precisely the same body of information available to sighted persons about an event that would engage the whole nation.264It also concluded that the detriment to the SOCOG would be modest because it would take only four weeks for the SOCOG to make the site accessible in compliance with the first priority level of the Web Content Accessibility Guidelines.265The Australian HREOC ordered the HREOC SOCOG to do all that is necessary to render its website accessible to complainant Maguire by a specified date, with the option for ability of Maguire to reopen the case and claim damages if the site was not made accessible.266In fact the site was not made accessible within the required timeframe and damages were awarded.267

A lawsuit under the Disability Discrimination Act in the United Kingdom (UK) has recently been brought against companies in the UK that alleges failure to make their websites accessible to people with visual disabilities.268The announcement of the suit follows an earlier announcement this year by the Disability Rights Commission in the UK that it was investigating 1,000 websites related to accessibility.269

In sum, although Australia is clearly the international leader having mandated accessible customer websites under its disability discrimination law, an international move toward accessibility is also evident. Developed nations, other than the U.S., appear to be following the W3C’s Web Content Accessibility Guidelines, and in some cases, have found disability discrimination where websites are not in conformance with the guidelines.

D. The Technical Feasibility of Making Websites Accessible

Today, there is little dispute that information technology exists to make websites accessible for people with disabilities -- in other words, it is technically feasible to design for commercial websites to be designed to be accessible to people with disabilities.270Reported court Court decisions support this conclusion. For example, in the U.S., Vincent Martin required Atlanta’s public transportation system to make its website accessible under Title II of the ADA, specifically commenting on the ability of the public transportation system to do so.271And in the international context, Australia held the website for the Olympic Games in Sydney was required to make its website accessible for people with disabilities, specifically discussing the technical feasibility of making the website accessible.272These courts would not likely have required the website operators to make their websites accessible if the technology did not exist to support accessibility.273In fact, both courts expressly recognized the ability of the website operators to make their websites much more accessible to people with visual disabilities.274

Given the technical feasibility of making websites accessible for people with disabilities, one might ask why many websites are not currently accessible, including commercial websites for customers.275Some courts have declined to construe Title III to require commercial websites to be accessible, relying on the fact that website technology to make websites accessible is rapidly evolving and concluding that there are no well-defined standards to make commercial websites accessible for the disabled.276While it is true that technology supporting accessible websites continues to evolve, it is not true that there are no well-defined standards to support making commercial websites accessible for the disabled.277

There are two major sources of technical standards for designing websites that are accessible: accessibility standards developed by the private sector (the W3C’s Web Content Accessibility Guidelines),278and the federal regulations requiring U.S. government websites to be accessible for the disabled (Section 508 Guidelines).279Either of these sources of technical guidelines for accessible websites may be used as a benchmark for accessibility under Title III.280The W3C’s Web Content Accessibility Guidelines 1.0 is characterized as a "stable" document that includes "specifications," and is a source of well-defined standards that courts could use to measure accessibility of commercial websites.281One important advantage of the W3C’s Web Content Accessibility Guidelines (over website accessibility standards like the Section 508 Guidelines established by statute or administrative regulation) is that they were developed with the involvement of the international business community and are available for international application, consistent with the international dimensions of the Internet and the Web.282

The U.S. government’s mandate to make all federal websites accessible to the disabled is supported by specific standards developed by an administrative agency under Section 508.283Thus, for websites located within the U.S., the Section 508 Guidelines are a second source of standards that courts could apply under Title III as a benchmark to determine if a website is accessible.284Unlike the W3C’s Web Content Accessibility Guidelines, the 508 Guidelines will require legislative action to keep them current with developing technology.285As such, the 508 Guidelines are likely to lag behind web technology and technology used by the disabled to access the web.286On the other hand, the Section 508 Guidelines have the advantage of reflecting the involvement of Congress and administrative agencies (unlike the W3C guidelines), and courts may therefore be more likely to recognized the 508 Guidelines as standards for accessibility in the U.S.287

In sum, it is feasible for businesses to make their websites accessible for people with disabilities using the W3C’s Web Content Accessibility Guidelines or the Section 508 Guidelines. Making websites accessible for the disabled makes the websites accessible to people in a variety of groups in addition to those with vision and other disabilities.288

VI. Conclusion

Should the courts find Title III covers commercial websites that offer their goods and services to the public? The right answer is "yes." As discussed in this paper, statutory construction, recent developments in the courts, the international perspective, and technical feasibility all support the conclusion that websites for customers are, and should be, required to comply with the ADA’s rules for places of public accommodation. All customers of publicly available commercial websites, including those with disabilities, are entitled to access to the information on the sites including customers with disabilities. The goal of full and equal access by persons with disabilities to web commerce facilities is too important to be excluded from the scope of Title III. Judicial support for this view of the scope of Title III is particularly strong under the nexus theory for websites offered to customers as a means of communicating with otherwise brick and mortar businesses. However, recent Supreme Court cases construing Title III and other federal civil rights laws that concern public accommodations support a broader construction of Title III that is not limited to a nexus with a physical facility.

The conclusion reached in this paper that commercial websites are covered by Title III addresses only the coverage of Title III. It does not define the non-discrimination obligations by businesses to design commercial websites in an accessible way, or preclude alternative ways of providing equivalent access. Concluding that commercial websites open to the public are governed by Title III simply means that customers who are disabled have the rights under the ADA that Title III provides. The critical conclusion that this paper supports is that e-businesses that serve the public are covered by the ADA and their customers are entitled to make Title III claims. Once these claims are properly recognized as within the scope of Title III, accessibility for the disabled in virtual marketplaces is sure to be furthered as the courts and administrative agencies apply Title III to work out the details. Along with the cost of removing barriers, e-businesses will gain access to the expanding market of disabled customers who will increasingly be able to shop on the Internet. This is consistent with Title III’s mandate to remove barriers that preclude people with disabilities from fully and equally participating in all aspects of society.

Footnotes