United States: Protection Under Title III Continues To Expand Beyond Brick-And-Mortar Accommodation To The World Wide Web: “National Federation Of The Blind v. Target Corp.”— AND MORE

From its inception, Title III of the Americans with Disabilities Act of 1990 ("ADA"), has been a hotbed of litigation. The goal of Title III is to ensure that qualified individuals with disabilities have a full and equal opportunity to participate in the programs, services, privileges and activities "of any place of public accommodation." See 42 U.S.C. § 12182(a). The statute defines "places of public accommodation" to include virtually all retail stores, hotels, restaurants, theaters, museums, hospitals, parks, and offices. See 42 U.S.C. § 12181(7).

One of the "hot topics" today regarding Title III is whether it applies to more than just brick-and-mortar stores or physical places of public accommodation. In today's cyber age, it is of no surprise that many places of public accommodation operate their own Web sites offering services to their patrons and the public, including hours of operation, locations, products to purchase, online job applications, and customer service or Human Resources contact information. Other owners and operators of Web sites may offer services and goods exclusively on Web sites. Depending on how the Web site was developed, these Web sites and the services they provide may not be accessible to individuals who are visually impaired. Consequently, lawsuits brought by the blind and disability advocacy groups have posed the question: Does Title III guarantee individuals with disabilities equal opportunity or accessibility to services provided over the Internet? Or simply put, does a Web site constitute a "public accommodation" under the Act?

The ADA does not explicitly define whether a "place of public accommodation" must be a physical place or facility, nor does it directly address the accessibility of the Internet to individuals with disabilities. The Department of Justice's regulations implementing Title III also do not address the Internet.1 Individuals with disabilities and those in favor of a broad definition of "public accommodation" contend that the Internet was not addressed by Congress when it passed the ADA in 1990 merely because cyberspace was in its infancy at that time and not as pertinent an issue as it is today. They argue that Congress chose not to narrow the definition of "public accommodation" to physical spaces, but rather intended to eliminate a broad range of discrimination against the disabled. See 42 U.S.C. § 12101(b); H.R. Rep. No. 101-485, pt. 2, at 108 (1990). They point to broad language in the statute that prohibits discrimination on the basis of disability and contend that "discrimination" encompasses the denial of opportunity, to participate in any program or service, and the provision of separate, but unequal, goods or services to individuals with disabilities. See 42 U.S.C. § 12182(b)(1)(A)(ii-iv). The term "services" in the statute, they claim, includes Web-based services and unequal access to those services is prohibited.

On the other hand, proponents of restricting Title III's coverage cite to the legislative history of the ADA and the Rehabilitation Act as evidence that Congress did not intend the ADA to apply to private Internet sites. Proponents to restrict Title III coverage argue that Congress's failure to address the Internet in the ADA was intentional and that, even assuming Congress originally neglected a reference to the Internet by mistake or lacked foresight in 1990 with respect to the Internet's future importance, Congress could have added language to clarify its intent to cover Web sites in the recently adopted ADA Amendments Act ("ADAAA"). The ADAAA was signed into law by the President on September 25, 2008, and became effective January 1, 2009; but it does not address the ADA's applicability to the Internet. In stark contrast, over recent years, Congress specifically has amended the Rehabilitation Act to require that federal government Web sites be made accessible to the blind. See 29 U.S.C. § 794(d). Therefore, proponents of the ADA's inapplicability to the Internet argue that Congress has clearly refrained from imposing accessibility requirements on privately owned Web sites under Title III.

In addition to the lack of clarity from Congress, there is also a lack of case law and authority examining Internet accessibility issues and that which exists remains inconclusive and contradictory. The case law analysis starts with one of the most recent class actions on the subject. In National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006), the District Court for the Northern District of California denied, in part, retailer Target's motion to dismiss the allegations that it violated Title III of the ADA and California state law because the Web site that it operated, Target.com, was inaccessible to the blind.

Target argued that the ADA and state law cover access to only physical spaces, such as Target's brick-and-mortar stores, and that because Target.com is not a physical space and thus not a "place of public accommodation," Plaintiffs' complaint failed to state a claim under these laws. Target also argued that even if Target.com provides some services associated with Target's stores, there was not a sufficient "nexus" between the services on the Web site and the brick-and-mortar stores to state a claim. Target also contended that Plaintiffs were not denied physical access to the Target stores where they were provided equal services to those on the Web site and that Target need not modify its Web site so long as it provided the information contained therein in some other format, such as by telephone or at the stores.

The district court disagreed with Target. The court found that even though, under Ninth Circuit law, a "place of public accommodation" is a physical place, a plaintiff alleging unequal access to a "service" of the place can allege that there is a sufficient "nexus" between the challenged service and the place of public accommodation to state a claim. See 452 F. Supp. 2d at 952-53 (citing Weyer v. Twentieth Century Fox Film Corp., 198 F. 3d 1104, 1114 (9th Cir. 2000) (concluding that places of public accommodation are "actual, physical places.")). The court also concluded that "it was clear from the face of the complaint" that many of the benefits and privileges of the Web site were services of the Target stores and that the challenged services were "heavily integrated with the brick-and-mortar stores." Id. at 954-55.

Moreover, the court found that "services" protected under the ADA were not limited to those on the premises of the public accommodation and stated: "[t]he statute applies to the services of a place of public accommodation, not services in a place of public accommodation." Id. at 953. Thus, the court held that the Plaintiffs need not be denied physical access to the Target stores to state a claim as "it is clear that the purpose of the statute is broader than mere physical access." Id. at 954. (Notably, the court made this assertion after stating that the legislative history of the ADA was "inconclusive" on the issue of the regulation of private Web sites. Id. at 952 n.2.) Finally, the court responded to Target's argument that it need not modify its Web site because there were other formats by which it could provide the services, by finding that "the flexibility to provide reasonable accommodation is an affirmative defense and not an appropriate basis upon which to dismiss the action." Id. at 956.

Although Target's major arguments for dismissal were rejected by the court, it is important to note the court's emphasis on the "nexus" required between the services on the Web site and Target's brick-and-mortar stores. The court ultimately held that, "to the extent that Plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores," they state a claim and the motion to dismiss is denied. Id. at 956. However, the court also found to the extent that Target.com offers information and services "unconnected to Target stores" and "which do not affect the enjoyment of goods and services offered in Target stores," Plaintiffs failed to state a claim under Title III. Id. The distinction by the court suggests that the ADA would not apply to all components or services of the Web site if, indeed, they were not integrated with the services of Target's brick-and-mortar stores.

Following this decision, in 2007, Plaintiffs moved for class certification of a nationwide ADA class and of a separate California subclass. See National Federation of the Blind v. Target Corp., No. 06-01802 (MHP), 2007 U.S. Dist. LEXIS 30513 (N.D. Cal. April 25, 2007). The court again recognized a "nexus" requirement between the use of the Web site and the use of the Target stores for the purposes of an ADA violation and consequently narrowed the nationwide class to: legally blind individuals who have attempted to access Target.com and "as a result have been denied access to the enjoyment of goods and services offered in Target stores."2 Id. at *12.

Prior to any further litigation, the parties reached settlement on August 27, 2008. As a part of the settlement agreement, Target will: (i) establish a $6 million fund from which members of the California settlement class can make claims; (ii) complete the steps necessary to make its Web site accessible to the blind; (iii) allow the National Federation of the Blind ("NFB") to certify the Target Web site through its Nonvisual Accessibility Web Certification program; (iv) pay the NFB to train all employees of Target who work on the company's Web site; and (v) pay the NFB attorney's fees and costs to be determined in mediation. (For more information about the terms of the settlement, please visit www.nfbtargetlawsuit.com.)

The Target case illustrates the need to resolve how the ADA and Title III specifically apply to the Internet. Because the Target case arose in the Ninth Circuit, which defines "place of public accommodation" as a physical place, Plaintiffs could not allege that Target.com was a "place of public accommodation." However, other circuits have suggested that a "place of public accommodation" may have a more expansive meaning that includes private Web sites and the Internet. The Seventh Circuit, for example, has noted, in dicta, that a "place of public accommodation" encompassed facilities open to the public in both physical and electronic space, including Web sites. See Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999). In one of the earliest cases, the First Circuit also held that "public accommodations" encompassed more than actual physical structures and, therefore, included defendant insurance company's provision of non-tangible benefits or services, such as health benefit plans, purchased over the telephone or by mail. See Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of New England, Inc., 37 F.3d 12, 19-20 (1st Cir. 1994). Finally, the Eleventh Circuit in Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279, 1280-81 (11th Cir. 2002), held that the telephone process for selecting contestants for the show "Who Wants to be a Millionaire" fell under the purview of Title III because it constituted a privilege provided by the studio where the show was filmed and the studio was a physical "place of public accommodation."

Notwithstanding the expansive view expressed in these cases, it appears that in most jurisdictions, as in the Target case, a plaintiff must allege some kind of connection between a Web site and a physical place of public accommodation to state a claim under Title III. The few courts that have been squarely faced with the question as to whether a Web site constitutes a "place of public accommodation" have found that it does not. In Access Now Inc. v. Southwest Airlines Co., 227 F. Supp. 2d 1312, 1318 (S.D. Fl. 2002), Plaintiffs, Access Now (a disability advocacy group) and a blind individual, asserted that Southwest Airline's Web site – separate and apart from any of its physical facilities – was inaccessible to blind persons and in violation of Title III. The District Court for the Southern District of Florida dismissed Plaintiffs' complaint, holding that it was the role of Congress, and not the court, to expand the ADA's definition of "public accommodation" beyond physical, concrete structures, to include "virtual" places of public accommodation such as the Web site. See id. at 1321.3 Likewise, the District Court for the Eastern District of Virginia, albeit in dicta, has found that online Internet chat rooms cannot be construed as "places of public accommodation" because "the logic of the statute and the weight of authority" indicate that they must be physical facilities. See Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 543-44 (E.D. Va. 2003), aff'd, 2004 U.S. App. LEXIS 5495 (4th Cir. Mar. 24, 2004).

Moreover, several cases including those discussed in the Target opinion illustrate that, irrespective of whether Title III's coverage is limited to physical spaces or facilities, a plaintiff's Title III claim regarding Internet services will fail unless the plaintiff demonstrates a rather strong "nexus" between the Web site and a physical place of public accommodation. In Ford v. Schering-Plough Corp., 145 F. 3d 601, 612-13 (3d Cir. 1998), for example, the Third Circuit held that the plaintiff failed to allege a nexus between the challenged insurance benefits and a physical place of public accommodation. Although the office of the insurer was a place of public accommodation, the challenged insurance benefits were offered by defendant Schering, plaintiff's employer; a sufficient nexus between the benefits and the insurer's office did not exist to hold Schering liable because the office, the place of public accommodation, did not offer the benefits to plaintiff. See id. Further, in Stoutenborough v. National Football League, 59 F.3d 580, 583-84 (6th Cir. 1995), the Sixth Circuit affirmed the dismissal of plaintiff's Title III claim because the challenged service, the live telecast of a football game, was not offered by, or sufficiently linked to, a place of public accommodation, the stadium; instead, the telecast was offered by the National Football League, which was merely a lessor of the public stadium.

While there remains no definite answer from the courts or Congress on whether the ADA applies to the Internet, inaccessible Web sites have been, and will continue to be, the target of lawsuits. In addition to the cases already discussed, the National Federation of the Blind sued America Online ("AOL") in federal court prior to its suit of Target, alleging that AOL's service was inaccessible to the blind in violation of Title III. The suit was settled without any substantive ruling in July 2000 with AOL agreeing to make all of its sites compatible with screen reader technology. In 2004, New York State Attorney General Eliot Spitzer announced settlements with two major travel Web sites, Ramda.com and Priceline.com, who agreed to implement a variety of accessibility standards to permit visually impaired users to utilize screen reader software on the sites. Over the past two years, Access Now (the same group that sued Southwest Airline) also sued bookseller Barnes & Noble and retailer Claire's Stores for maintaining Web sites that allegedly violated the ADA. In fact, as recently as September 26, 2008, the National Federation of the Blind and Massachusetts Attorney General Martha Coakley announced a cooperative agreement with Apple, Inc. to make Apple's iTunes software, iTunes Store, and iTunes U more accessible to the blind. Apple also agreed to contribute $250,000 to the Massachusetts Commission for the blind.

The lesson to be taken away from the Target case and others is that litigation under Title III can have an unpredictable outcome and can be costly. Even though Title III limits damages to declaratory and injunctive relief and attorney's fees, depending on the state in which the lawsuit is filed, state laws may allow for monetary damages causing expensive settlements or awards. In some cases, modification of a Web site to comply with accessibility standards should be considered. Making a Web site accessible to all including disabled individuals has the potential benefit, among others, of attracting more patrons, clients, and even job applicants or employees. Human Resources professionals of companies covered by Title III that operate private Web sites should examine, in conjunction with counsel, whether modification to their Web site is a viable option. As companies know well, the Internet is no longer the wave of the future but the wave of the present; and, one way or another, the law will eventually catch up.


1. The Department of Justice issued an opinion letter in 1996, however, in which it concluded that "covered entities that use the Internet for communications regarding their programs, goods or services must be prepared to offer these communications through accessible means as well." See Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to U.S. Senator Tom Harkin, Sept. 9, 1996, available at http://www.usdoj.gov/crt/foia/cltr204.txt (last accessed October 1, 2008).

2. Notably, the court deferred ruling on the class certification of the California subclass and thereafter, in a separate decision, determined that Plaintiffs' subclass definition of "all legally blind individuals in California who have attempted to access Target.com" was appropriate because, unlike the ADA, California state law does not require a "nexus" to the physical shores to be shown. See National Federation of the Blind v. Target Corp., No. 06-1802 (MHP), 2007 U.S. Dist. LEXIS 73547, at *26-35 (N.D. Cal. Sept. 28, 2007).

3. Subsequently, the Eleventh Circuit dismissed Plaintiffs' appeal of this decision, finding that Plaintiffs had not appropriately appealed from the court's determination that the airline's website was not a "place of public accommodation" under Title III, but rather, their appellate brief, for the first time, argued that the airline as a whole was a place of public accommodation because it operated a "travel service," and that it had violated Title III because of the website's connection to the airline's "travel service." See Access Now Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th Cir. 2004).


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