Seyfarth Synopsis: Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff.  Two days later, a California federal judge held that a blind plaintiff’s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery.  Now two federal judges in New York have weighed in, denying restaurant Five Guys’ and retailer Blick’s motions to dismiss lawsuits alleging that the defendants’ inaccessible websites violate the ADA and New York State and City civil rights laws. Both judges found that: (1) websites are subject to the ADA, regardless of whether the goods and services are offered online and in physical locations; and (2) courts don’t need agency regulations setting a standard for website accessibility to decide whether a website violates the ADA. The court in Five Guys additionally held that being in the process of improving a website’s accessibility is very different from having successfully completed that process to meet the mootness standard of being “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” It summarily rejected the restaurant’s mootness argument on that basis.

In the Blick putative class action, Eastern District Court Judge Weinstein issued a lengthy 38-page order on August 1 that addressed the issue of whether a nexus to a physical place of business is required to subject a website to the ADA. The opinion expressed sympathy for blind individuals who are unable to use some websites with their screen reader software and marshalled every possible argument in favor of finding that all websites that fall within the twelve types of businesses classified as “places of public accommodation” are covered by the ADA.  Judge Weinstein first surveyed relevant decisions from federal courts in other circuits.  Although the Ninth Circuit is the only appellate court that has actually addressed the coverage of a website under Title III of the ADA (all other Court of Appeals decisions have concerned other matters, mostly insurance products), he found that the Third, Sixth, and Eleventh Circuits have held that only businesses with a “nexus” to a physical location are subject to the ADA.  He characterized this interpretation of the law as “narrow” because it would mean that “a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make [its] website accessible.” The court then considered First and Seventh Circuit decisions which have held that a business does not need a physical place of business where customers go to be considered public accommodations under the ADA.

Finally, looking to its own Court of Appeals (which has not squarely addressed the question of whether a business with no physical location can be covered by Title III of the ADA or considered a website accessibility case), the Blick court relied upon an extended interpretation of the Second Circuit’s holding in Pallozzi – an insurance policy case – to hold that a business that has no physical place of business can be a covered public accommodation under the ADA.  Notably, the defendant in Pallozzi had a physical place of business where the plaintiff had purchased the allegedly discriminatory insurance product.  The Second Circuit held in Pallozzi that Title III of the ADA reaches beyond access barriers at a physical location and extends to the terms of the products sold from that physical location. It did not hold, nor even state in dicta, that a business with no physical location is covered by the ADA in the first place, or that a business’ website is covered by the ADA.

In holding that a website does not need a nexus to a physical location to be covered by the ADA, Judge Weinstein aligned himself with two other District Court judges in the Second Circuit (District of Vermont Judge William K. Sessions III and New York Southern District Judge Katherine Forrest) who reached the same conclusion in cases brought against Scribd and Five Guys, respectively.   

The Blick decision also rejects the recent Bang & Olufsen decision out of the Southern District of Florida, which followed the Target case in holding an ADA website access claim can only survive a motion to dismiss if the website’s inaccessibility has an actual nexus to the business’ physical location. The Bang & Olufsen court held that the plaintiff had not stated an ADA Title III claim because his complaint did not allege that the alleged website barriers in any way impeded his ability to shop at the physical store. The Blick court found this interpretation of the ADA “absurd,” as it would require that only select aspects of Blick’s website and online presence be accessible to the blind, such as allowing disabled individuals “a right to ‘pre-shop’ in their home, but no right to actually make a purchase in their home,” and provide disabled individuals “no right whatsoever to purchase goods or services from companies whose business models (e.g. television shopping channels, catalogs, online-only) are premised on having customers shop only from home.”

The court concluded its 22-page discussion of the issue by stating the plaintiff “has a substantive right to obtain effective access to Blick’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant’s website provides to the general public.” It also found that the plaintiff might be able to enforce his rights through a class action, but that issue would wait until after the parties’ motion(s) for summary judgment. The court also stated that it would convene a “Science Day” where experts would demonstrate web access technology to the court “to explore how burdensome it would be for the defendant to make its website compatible with available technology.”

Both the Blick and Five Guys decisions rejected the argument that Justice Department regulations setting website accessibility requirements are necessary for a finding that a defendant has violated the ADA by having an inaccessible website. Like the District of Massachusetts in denying MIT and Harvard’s motions to dismiss, and the Central District of California in denying Hobby Lobby’s motion (contrary to a different decision out of that same district) the Blick court rejected the primary jurisdiction argument on the basis that it is the court’s job to interpret and apply statutes and regulations and the risk of inconsistent rulings is outweighed by plaintiff’s right to prompt adjudication of his claim. The court discussed the long history of the Justice Department’s website accessibility rulemaking efforts before concluding that “t[]he court will not delay in adjudicating [plaintiff’s] claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Both courts rejected the defendants’ due process arguments, stating no standard set by statute or regulation for is needed for the ADA’s requirements of “reasonable modifications,” “auxiliary aids and services,” and “full and equal enjoyment” to apply to website accessibility. In rejecting Five Guys’ argument that there are no regulations setting forth accessibility standards for websites, the Five Guys court noted that there are steps defendant could take, such as using the Web Content Accessibility Guidelines.

Finally, the Blick decision addressed the coverage of website accessibility claims under the New York State Human Rights Law, New York State Civil Rights Law, and New York City Human Rights Law, and found that such claims were covered to the same extent as they are under Title III of the ADA.

While there is no way of knowing whether other federal judges in New York will agree with the holdings of District Judges Weinstein and Forrest, more lawsuits will likely be filed in New York after these decisions.

wooden gavel on laptopFailure to Provide an Accessible Alternative Is Not Intentional Discrimination Sufficient to Establish an ADA-Independent Unruh Act Claim

By Kristina M. Launey and Minh N. Vu

On April 1, 2015, the Ninth Circuit became the first federal appellate court in the country to hold that web-only businesses are not places of public accommodation under the ADA.

As we previously reported, the Ninth Circuit two weeks ago heard oral argument in two cases on the question of whether a business that offers its goods and services only through a website is a “public accommodation” covered by Title III of the ADA. The Ninth Circuit had previously held, in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000), that the statute only applies to businesses that have a connection to a physical place where they offer their goods and services, but this precedent did not specifically concern a website.

The Ninth Circuit followed this prior precedent in holding in Cullen v. Netflix and Earll v. Ebay that Netflix’s video streaming service and eBay’s web-based business are not subject to the ADA’s non-discrimination mandate because their services are not connected to any “actual, physical place.” The Court held that the phrase “place of public accommodation” requires “some connection between the good or service complained of and an actual physical place.”

This decision comes only a week after a district court in Vermont came down the opposite way after determining the authorities trial courts in the Ninth Circuit had relied upon, and which the Ninth Circuit relied upon in its April 1 orders, were not dispositive, as we reported here.

The Ninth Circuit decided additional California law-specific issues in Earll. It held that the DPA claim failed at a matter of law because Earll did not allege a violation of any separate applicable accessibility standard, such as the California Building Code. It also held that Earll’s Unruh Act claim failed because he had failed to allege intentional discrimination. Specifically, the Court found that the aural identification system used by eBay on its website applies to all eBay users, whether hearing impaired or not, and that eBay’s failure to provide a deaf-accessible alternative to that system does not amount to willful, affirmative misconduct sufficient to constitute intentional discrimination.

The opinions are only 3-4 pages long, not published, and expressly non-precedential. The plaintiffs may well appeal to the US Supreme Court to finally resolve this important issue of whether web-only businesses are places of public accommodation under the ADA.

By Andrew C. Crane

On January 28, 2014, in Martinez v. Columbia Sportswear USA Corp., the United States Court of Appeals for the Ninth Circuit affirmed summary judgment for our three retail defendants, holding for the first time that a 60-inch long dressing room bench constitutes an “equivalent facilitation” under the 1991 ADA Standards, which specify that benches must be 48” long.

The 1991 ADA Standards permits deviations from particular scoping requirements as long as the deviations allow for “substantially equivalent or greater access to” the facility–otherwise known as an “equivalent facilitation.”  Although a number of lower courts had held that a 60-inch bench constitutes an equivalent facilitation, prior to the Martinez decision, the Ninth Circuit had not taken a position.  The issue is now settled in California – where a disproportionate number of access lawsuits are filed.

In another boon for retailers, the Ninth Circuit also held in Martinez that “the clearing of moveable merchandise racks” that blocked store aisles addressed this barrier and rendered the claim moot.  While this is a great result, prevention is the best cure.  Retailers should have policies and procedure in place to keep their keep aisles clear of merchandise and merchandise racks to avoid a claim on this basis in the first place.

The case was handled through summary judgment and subsequent appeal by Jon D. Meer, Myra B. Villamor, and Andrew C. Crane of Seyfarth Shaw LLP.

Edited by Kristina M. Launey and Minh N. Vu

By Todd C. Hunt 

On the heels of Cullen v. Netflix, Inc., reported here last month, two other federal judges in the U.S. District Court for the Northern District of California followed the lead established by the Ninth Circuit more than a decade ago in ruling in a putative class action that websites not connected to “physical spaces” are not covered by the ADA [click here for order].  Initially, in refusing to accept the deaf plaintiff’s proposed amended complaint that included an ADA claim that deaf people cannot use a telephonic verification/registration process used by the online auction company, Judge Fogel found that “the ADA could not afford a remedy to [the plaintiff] in this case because [the defendant’s website] is not a place public accommodation.”  However, the denial was without prejudice, and plaintiff tried again.  The case was reassigned to Judge Davila before eBay brought a motion to dismiss the new complaint, and, in ruling on the motion, Judge Davila reinforced Judge Fogel’s finding and dismissed the ADA claim, despite the plaintiff’s effort to allege that the defendant had a “brick and mortar” presence through the company’s recently launched initiative that offered online customers the ability to search for items in local stores. 

Both judges also emphasized the heightened burden and factual showings required for a plaintiff to establish claims under the Unruh Civil Rights Act and the Disabled Persons Act (DPA) when those claims are not based on underlying ADA violations.  Regarding the DPA, the court held that to establish a violation the plaintiff would have to allege “a particular provision or regulation under California law that requires higher standards of website accessibility than the ADA.”  As for the Unruh Act, the court held that the plaintiff needed to make specific allegations that would establish intentional discrimination.  Plaintiff’s allegation that the defendant had created an inaccessible process and refused to implement “easy and inexpensive” solutions used by other companies in response to her request, in the court’s view, was not enough to support a claim of intentional discrimination, even at the motion to dismiss stage.  While acknowledging that the plaintiff’s allegations may raise an issue of disparate impact, Judge Davila found the defendant’s online processes to be facially neutral and that the plaintiff did not sufficiently allege that the defendant treated her differently “because of her disability” or that the website feature “target[ed] individuals with disabilities.”