When President George H. W. Bush signed the Americans with Disabilities Act (ADA) into law in 1990, he declared that the ADA would “open up all aspects of American life to individuals with disabilities—employment opportunities, government services, public accommodations, transportation and telecommunications,” noting that the ADA is “comprehensive because the barriers faced by individuals with disabilities are wide-ranging” and that then-existing disability discrimination laws “have left broad areas of American life untouched or inadequately addressed,” Statement on Signing the Americans with Disabilities Act of 1990 (July 26, 1990). When the ADA was enacted, the vast information infrastructure of the Internet that allows ready access to employment, health care, education, government services, goods and entertainment did not exist. As is not historically uncommon, technology and the law did not develop simultaneously. Despite the ubiquity of the Internet as an everyday tool for most Americans, federal courts of appeals have split on the issue of whether the protections of the ADA reach goods and services provided solely via the Internet, leaving people with disabilities without a well-settled right to equal access to the internet.

Title III of the ADA prohibits disability-based discrimination “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation …” 42 U.S.C. Section 12182. The ADA includes 12 categories of entities affecting commerce in the definition of “public accommodation,” including hotels, restaurants, theaters, bakeries, banks, insurance offices, gas stations, pharmacies, and schools, as well as “other” service establishments, places of public gatherings, and places of entertainment, and places of recreation.

The legislative history suggests that the yet-to-be-developed Internet would be well within the ADA's parameters: “The committee intends that the 'other similar' terminology should be construed liberally, consistent with the intent of the legislation that people with disabilities should have equal access to the array of establishments that are available to other who do not currently have disabilities,” H.R. Rep. 101-485, pt. 2, at 100, 1990 U.S.C.C.A.N. 303, 383 (1990).  The committee report confirmed that Congress intended the ADA's coverage of public accommodations to “keep pace with the rapidly changing technology of the times.” Yet, the case law raises questions as to whether goods and services provided exclusively on the internet are covered by Title III of the ADA because they are not physical “places” of public accommodation.

While not addressing the internet, the U.S. Court of Appeals for the Third Circuit declined to read the ADA to require equal access for people with disabilities to goods or services that are offered without a sufficient link to a physical building. In Ford v. Schering-Plough, 145 F.3d 601 (3d Cir. 1998), the Third Circuit faced “the purely legal question of whether a disparity between disability benefits for mental and physical disabilities violates the [ADA].”  Plaintiff Ford argued that MetLife, the insurance company engaged by her employer to provide disability benefits to employees violated Title III. The court rejected that claim, finding that “since Ford received her disability benefits via her employment …, she had no nexus to MetLife's 'insurance office' and thus was not discriminated against in connection with a public accommodation.” The court emphasized that “the fact that an insurance office is a public accommodation … does not mean that the insurance policies offered at that location are covered by Title III.” The court described its reasoning as “confining” and “restricting” “'public accommodations' to places.”

The Sixth, Ninth and Eleventh circuits have agreed with the Third Circuit, concluding that a “public accommodation” is a physical space, See, e.g., Parker v. Metropolitan Life Insurance, 121 F.3d 1006, 1010-1011 (6th Cir. 1997) (en banc) (finding that a “public accommodation” is a “physical space” and, therefore, that a plaintiff cannot state a claim under Title III where there is “no nexus between the disparity in benefits and the services which [the insurance company defendant] offers to the public from its insurance office”); Weyer v. Twentieth Century Fox Film, 198 F.3d 1104, 1114, 1115 (9th Cir. 2000) (holding that “some connection between the good or service complained of and an actual physical place is required”); Rendon v. Valleycrest Products, 294 F.3d 1279, 1282 (11th Cir. 2002) (ruling that “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”).

Appeals courts for the First, Second and Seventh circuits, however, have reached contrary conclusions, holding that Title III does not require a connection to a physical space, as in Carparts Distribution Center v. Automobile Wholesaler's Association of New England, 37 F.3d 12, 19 (1st Cir. 1994) (ruling that public accommodations are not limited to “actual physical structures” and reasoning that “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”); Pallozzi v. Allstate Life Insurance, 198 F.3d 28, 33 (2d Cir. 1999), opinion amended on denial of reh'g, 204 F.3d 392 (2d Cir. 2000) (rejecting defendant's argument 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'”); Doe v. Mutual of Omaha Insurance, 179 F.3d 557, 559 (7th Cir. 1999) (finding that the “the core meaning of Title III, 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”).

The Third Circuit had an opportunity to reexamine Ford in the internet era, but declined the opportunity to revisit its holding. In an unpublished decision, the court acknowledged the circuit split on whether “public accommodation” under the ADA “refers to an actual physical structure or whether it has some broader meaning.” Peoples v. Discover Financial Services, 387 F. App'x 179, 183 (3d Cir. 2010). In Peoples, the plaintiff, a person who is blind, sued his credit card company after the company refused to credit his fraud claim for alleged over-charges for prostitution services. The Third Circuit upheld entry of summary judgment against the plaintiff under Ford because “communication between [the prostitute's] credit card processing terminal and [the defendant] is not a 'public accommodation' within the meaning of the ADA” since the allegedly discriminatory payment processing occurred at an apartment and not at a physical property owned, leased or operated by the defendant.

Even the appellate courts that have extended Title III of the ADA beyond physical places, have not squarely answered the question of whether a stand-alone website, with no connection to goods or services offered in a physical space, must be accessible to people with visual impairments. Two district courts in those Circuits, however, have held that Title III extends to such websites. In National Federation of the Blind v. Scribd, 97 F. Supp. 3d 565, 567 (D. Vt. 2015), the court ruled that a digital library that operates reading subscription services on its website must be accessible to people with disabilities. After concluding that Title III is ambiguous, the court recognized that “now that the Internet plays such a critical role in personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of the reaching the public would defeat the purpose of this important civil rights legislation.” Similarly, in National Association of the Deaf v. Netflix, 869 F. Supp.2d 196, 200-02 (D. Mass. 2012), the court denied a motion to dismiss a Title III claim challenging Netflix's “watch instantly” video streaming website, which was not accessible by people with hearing impairments. The court found that “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology,” that “Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations,” and that “the ADA covers the services 'of' a public accommodation, not services 'at' or 'in' a public accommodation.”

With the courts of appeals issuing rulings based on inconsistent interpretations of Title III, in 2010, the Department of Justice (DOJ) issued Advance Notices of Proposed Rulemaking Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (ANPRMs). The DOJ stated that it was considering amending its Title III regulations to require public accommodations that provide products of services to the public through Web sites on the Internet to make their sites accessible to and usable by individuals with disabilities. According to the DOJ, “a business providing services solely over the Internet is subject to the ADA's prohibitions on discrimination of the basis of disability.” As of Decenber 2017, however, the DOJ withdrew its ANPRMs.

This leaves a gaping hole in the law governing accessibility requirements for websites that are not tied to a traditional “brick-and-mortar” store. For now, whether a particular website—which reaches people nationwide—is a “public accommodation” under Title III depends upon the location of the court hearing a challenge to its inaccessibility.

Shanon S. Levin is the managing attorney in the Philadelphia office of Disability Rights Pennsylvania. Contact her at [email protected].