By Minh N. Vu
For more than a decade, courts have struggled with the question of whether the ADA’s coverage of twelve “places of public accommodation” (e.g., places of lodging, entertainment, retailers, restaurants, service establishments) is limited to physical places, or whether they can be virtual. The answer to this question dictates whether virtual places, such as websites, are covered by Title III of the ADA, and therefore must be accessible to individuals with disabilities. If accessibility is required, businesses must, among many other things, ensure that audio content is communicated to deaf users in some effective manner (e.g., captioning, transcripts) and that visual content can be read by screen readers used by blind readers.
In 2006, federal District Court Judge Marilyn Patel in San Francisco avoided answering the question directly by holding that Target’s retail website is a covered “place of public accommodation” because there was a “nexus” between the website and Target’s brick and mortar stores. This week, federal Massachusetts District Court Judge Michael A. Ponsor pushed the envelope one step further in National Association for the Deaf v. Netflix (June 19, 2012) by holding that Netflix’s web only video streaming business, “Watch Instantly,” is a “place of public accommodation” covered under Title III of the ADA.
The decision is not entirely surprising. In 1994, the First Circuit held in Carparts Distribution Center v. Automotive Wholesaler’s Association of New England, that the phrase “place of public accommodation” is not limited to physical places. The Court allowed an ADA Title III claim to proceed against an insurance plan that provided its benefits through the employer and had no physical place of business patronized by customers.
That said, the extension of this concept to include all websites of public accommodations regardless of whether the business has a physical presence has a much greater impact. Essentially every public accommodation business in the world that has a website that can be accessed by customers in the United States and its Territories might be covered under Title III of the ADA. What would happen if the United States and other countries adopted conflicting technical standards for an “accessible” website? As with many other areas of the ADA (e.g., pool lifts), the lawyers and consultants will benefit greatly from the complicated issues that will arise. It may be time for Congress to step in to deal with these issues now in a certain and sensible fashion rather than allowing the law to develop in piecemeal fashion in the courts.
Further complicating matters is the fact that the U.S. Department of Justice (“DOJ”) has yet to issue regulations setting technical standards for accessible public accommodations websites. Despite the lack of standards, the DOJ has made clear that it expects websites to be “accessible” — whatever this might mean. Most businesses seeking to make their websites accessible to individuals with disabilities have adopted WCAG 2.0, a standard developed by a private group called the Worldwide Web Consortium. The DOJ has signaled in an Advanced Notice of Proposed Rulemaking for website accessibility standards that it is considering adopting WCAG 2.0 as the legal standard. However, because making websites comply with this standard can cost millions of dollars, many businesses understandably want a definitive legal standard to be in place before investing that kind of money. Businesses are increasingly caught between a rock and a hard place: Adopt a standard that could change before it becomes legally binding, or risk exposure to class action lawsuits that could cost millions of dollars. The Netflix decision may well tip the scale in favor of adopting WCAG 2.0 now for many businesses with and without physical locations.