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The opinions are only 3-4 pages long, not published, and expressly non-precedential.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.

(Photo) Online ShoppingBy Christina F. Jackson, Kristina M. Launey, Minh N. Vu Courts on both coasts have grappled with whether Title III of the Americans with Disabilities Act (ADA) applies to websites of businesses that have no physical place of business where customers go. One judge in the U.S. District Court for the District of Massachusetts answered this question in the affirmative, holding that Netflix’s video streaming website is a “place of public accommodation” covered by Title III of the ADA, even if the website has no connection to a brick and mortar business. In contrast, two judges from the U.S. District Court for the Northern District of California have held that Netflix and eBay’s websites are not covered by Title III of the ADA because they did not have a connection to an actual, physical place of business. These judges were all purporting to follow Court of Appeals precedents in their respective circuits, although those precedents did not specifically concern websites. Title III of the ADA and its regulations provide little guidance because they were drafted before the Internet became so ubiquitous.

Last Friday, on March 13, 2015, the Ninth Circuit Court of Appeals heard oral argument on the question of whether a web-only business is a place of public accommodation under the ADA and California state laws predicated upon the ADA in Cullen v. Netflix and Earll v. eBay, Inc.. (We’ll explore the California-specific issues more in-depth in a separate post.) Recordings of the oral arguments are available here and here.

Does Title III of the ADA apply to web-only businesses? Continue Reading Ninth Circuit Hears Arguments: Are Web-Only Businesses “Places of Public Accommodation” Subject to Title III?