Kelly L. Frey Sr. and Shameak Belvitt
Special to Law.com
April 08, 2011
As the digital domain becomes ever more prevalent in our everyday lives through applications that facilitate our daily routine of social networking, online
shopping and web access to information, it is sometimes difficult to distinguish where the virtual/digital world stops and the real/physical world begins. Unless, that is, you are a person with a disability, in which case you may have experienced the same type of limited access to digital destinations as
historically the disabled had with physical destinations. Unfortunately, most Internet destinations have been constructed without regard for the disabled,
providing no cues or accessibility aids to guide visually or cognitively disabled individuals and resulting in thousands of Americans being effectively
denied access to these digital destinations.
However, recent legal and technical efforts are pending that could change the digital landscape for the disabled, creating a digital world that people with
disabilities can more easily navigate and opening up a new demographic of disabled users to online retailers, Internet entrepreneurs and digital educators.
THE LEGAL ENVIRONMENT
The Americans with Disabilities Act [FOOTNOTE 1] provides nondiscrimination protection in employment, public services, public accommodations, services operated by private entities, transportation, and telecommunications for individuals with physical or mental disabilities.
The purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” [FOOTNOTE 3]
However, the ADA was enacted in 1990, prior to the Internet’s pervasive presence. Consequently, the ADA does not expressly cover nondiscrimination with respect to the Internet or digital destinations. [FOOTNOTE 4]
The U.S. Supreme Court has yet to address this issue and currently there is split among the federal circuits over whether Title III of the ADA with respect
to Public Accommodations applies to digital destinations as well as physical destinations.
Title III of the ADA states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.”
The ADA also specifically lists entities that are considered places of public accommodation.
Hotels, restaurants, bars, theaters, grocery stores, shopping centers, insurance offices, museums, zoos and gyms — just to name a few — are all listed
in the ADA as examples of public accommodations.
However, the various federal circuits have split decisions over whether the definition of public accommodation is limited to actual physical structures
or whether the definition of public accommodation includes digital infrastructure, such as retail websites.
In Carparts Distribution Center v. Automotive Wholesalers Ass’n of New England
the 1st Circuit found that the definition of public accommodation was not limited to an actual physical structure.
According to Carparts,
[n]either 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 purpose of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the
goods, services, privileges and advantages, available indiscriminately to other members of the general public.
The 2nd and 7th Circuits have also joined the 1st Circuit in holding that public accommodations are not limited to actual physical structures.
Other federal circuits have not accepted this more expansive approach. In Access Now, Inc. v. Southwest Airlines,
the 11th Circuit found that the definition of public accommodation was limited to an actual physical structure and did not include websites.
The court in Access Now, Inc. held that “…to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards.”
Similarly, the courts in the 3rd, 6th and 9th Circuits agree that the definition of public accommodation is restricted to a physical structure.
Several federal district and state courts have also considered access to websites by persons with disabilities.
In the District Court for the Northern District of California, in a case decided after the 9th Circuit decision in Weyer v. Twentieth Century Fox Film Corp.
the court seemed to adopt a middle ground between the two competing positions taken by the federal circuit courts.
In National Federation of the Blind v. Target Corp., the National Federation of the Blind asserted that “due to Target’s failure and refusal to remove access barriers to Target.com, blind individuals have been and are being denied equal access to Target stores, as well as to the numerous goods, services and benefits offered to the public through Target.com ”
Although Target filed to dismiss the case, asserting that the National Federation of the Blind failed to state a claim under Title III of the ADA, the California district court held that the National Federation of the Blind properly asserted a claim under Title III to the extent that a blind person’s inability to access the Target.com website impeded the blind person’s full and equal enjoyment of the goods and services offered inside an actual Target store.
The holding in National Federation of the Blind seems to rely upon a “nexus theory” between the physical and virtual retail space — there must be a connection between a website and a physical store in order for a disabled person to assert a claim under Title III of the ADA .
The nexus theory would clearly apply the ADA provisions to brick and mortar stores that also offer the convenience of online shopping. The more hotly contested question is whether online retailers that do not have public brick and mortar stores must also comply with the ADA (e.g. online retailers such as Amazon
A recent case in the Central District of California also seems to have adopted a more liberal application of the ADA to the virtual environment. In Kotev v. First Colony Life Insurance Co.,
the district court found that limiting the definition of public accommodation to actual physical structures would negate the purpose of the ADA to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities… and to invoke the sweep of congressional
authority… in order to address the major areas of discrimination faced day-to-day by people with disabilities.”
While the U.S. Supreme Court has yet to address these issues, new congressional activity
and potential involvement of the Department of Justice
may indicate that retailers, especially online retailers, may need to consider modifying their websites to accommodate persons with disabilities sooner rather than later.
THE TECHNICAL ENVIRONMENT
The good news for online destinations is that the ADA is not prescriptive. The federal law does not mention the specific steps a destination must follow in order to be compliant with the ADA but rather relies upon industry groups to provide “best practices” and standards to address the specific needs of
persons with disabilities. The ADA simply requires that online retailers make “… reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities…”
One industry group that has developed a set of “best practices” to make the web more accessible to individuals with disabilities is the Web Accessibility Initiative.
According to WAI, there are several essential components to web accessibility: content, web browsers/media players, assistive technology, user knowledge,
developers authoring tools and evaluation tools.
In order to make the web more accessible to individuals with disabilities, WAI suggests, among other things, providing captions and alternatives for video
and audio content, providing text alternatives for pictures, organizing web content in predictable ways and using color contrasts to make things easier to see.
Many online retailers have already taken proactive steps to make their websites more accessible to individuals with disabilities.
For example, Amazon has formed a partnership with the National Federation of the Blind to determine how it can make its website more accessible.
It has also opened a visually impaired store where individuals may purchase voice recognition software, large-print books, and audio books.
Third-party applications are also readily available to help online retailers adapt their websites for access. IBM’s Easy Web Browsing tool is one option available to online retailers. IBM’s Easy Web Browsing only requires that online retailers install the tool on their websites as opposed to redesigning their entire website.
Once a visually impaired person accesses a website, they simply click on a Web page link to download the Easy Web Browsing tool.
The program allows users to change background colors, enlarge text or have text read aloud.
WebbIE is another option available to online retailers.
WebbIE works with Windows and Internet Explorer to reformat the information and images on the online retailer’s Web page to several links in a text-only document.
This allows a visually impaired person to use their screen reader to scroll over the links and have the text read aloud.
WebbIE also allows visually impaired users to enlarge text and change colors to make the online retailer’s website more accessible.
Currently, the law does not unequivocally require online merchants and other online destinations to comply with the ADA; however, there appears to be a clear trend, both legally and technologically, to extend the same advantages of instantaneous digital access to persons with disabilities as to those without. Although online merchants and other online destinations may have to bear the initial cost necessary to make their websites more accessible to persons with
disabilities, such costs are likely to be recouped as online vendors benefit from exposure to new markets and new target audiences that have previously been underserved. For most online retailers and destination sites it will be an easy decision — and those that make the decision to adjust early may benefit from both the reduced risks associated with compliance in the face of legal uncertainties and the economics associated with early market access to an underserved
Shameak Belvitt and Kelly L. Frey Sr. are attorneys with Baker Donelson Bearman Caldwell & Berkowitz (Nashville, Tenn.). Ms. Belvitt is an associate who concentrates her practice in business and technology transactions. She may be reached at (615) 726-7338 or email@example.com. Mr. Frey is a shareholder
who represents the headquarters of Fortune 1000 companies in complex corporate and technology transactions and compliance matters. He may be reached at
(615) 726-5682 or firstname.lastname@example.org. The views expressed in this article are personal views of Ms. Belvitt and Mr. Frey.
FN1 42 U.S.C. §12101 et seq. (2011).
FN2 U.S. Congressional Research Service. The Americans with Disabilities Act: Application to the Internet (R40462; July 22, 2010) by Nancy Lee Jones.
FN3 42 U.S.C. §12101(b)(1) (2011).
FN4 U.S. Congressional Research Service. The Americans with Disabilities Act: Application to the Internet (R40462; July 22, 2010) by Nancy Lee Jones.
FN5 42 U.S.C. §12182(a) (2011).
FN6 42 U.S.C. §12181(7) (2011).
FN7 See id.
FN8 U.S. Congressional Research Service. The Americans with Disabilities Act: Application to the Internet (R40462; July 22, 2010) by Nancy Lee Jones.
FN9 37 F.3d 12 (1st Cir. 1994).
FN10 See id.
FN11 See id. at 20.
FN12 See Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999); Doe v. Mutual Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999).
FN13 227 F.Supp.2d 1312 (S.D. Fla. 2002).
FN14 See id.
FN15 Id at 1318.
FN16 See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601 (3d. Cir. 1998); Parker v.
Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580 (6th Cir. 1995).
FN18 Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006).
FN19 Id. at 952.
FN20 See id. at 956.
FN21 U.S. Congressional Research Service. The Americans with Disabilities Act: Application to the Internet (R40462; July 22, 2010) by Nancy Lee Jones.
FN22 See id.
FN23 927 F.Supp. 1316 (C.D. Cal. 1996).
FN24 See id. at 1321 (citing 42 U.S.C. § 12101(b)(1,4) (2011)).
FN25 U.S. Congressional Research Service. The Americans with Disabilities Act: Application to the Internet (R40462; July 22, 2010) by Nancy Lee Jones.
FN26 Id. at 6-7.
FN27 42 U.S.C. §12182(b)(2)(A)(ii) (2011).
FN28 http://www.w3.org/WAI/gettingstarted/Overview.html (last visited Feb. 25, 2011).
FN29 http://www.w3.org/WAI/intro/components.php (last visited Feb. 25, 2011).
FN30 http://www.w3.org/WAI/WCAG20/glance/ (last visited Feb. 25, 2011).
FN31 http://www.amazon.com/gp/help/customer/display.html/ref=hp_left_sib?ie=UTF8&nodeId=200259430 (last visited Feb. 25, 2011).
FN32 See id.
FN33 See id.
FN34 IBM, http://www-03.ibm.com/able/accessibility_services/EasyWebBrowsing.html (last visited Feb. 11, 2011).
FN35 See id.
FN36 See id. For example, see http://www1.macys.com/accessibility/start_en.html
FN37 http://www.webbie.org.uk/webbie.htm (last visited Feb. 25, 2011).
FN38 See id.
FN39 See id.
FN40 See id.