New York, N.Y. (August 2021) - Generally speaking, unlike some courts in other jurisdictions, the New York federal courts have been hospitable to claims by disabled plaintiffs that websites do not comply with the Americans with Disabilities Act (ADA) due to lack of accessibility based on, among other things, incompatibility with software used by visually impaired individuals and lack of closed captioning on videos that contain audio content as is needed by deaf or hard-of-hearing individuals. As a result, disabled plaintiffs file hundreds of such actions in the Southern District of New York and Eastern District of New York every year, including against companies with scant connection to New York. A notable new decision from Judge Eric Komitee in the Eastern District of New York in Winegard v. Newsday LLC, 19 CV 04420, issued on August 16, 2021, took a much different tack. If this decision is affirmed on appeal or followed by other jurists, the New York federal courts will no longer be a hotbed of these cases.
In Winegard, Judge Komitee addressed whether a website constitutes a "place of public accommodation," which would be required under ADA Title III to be accessible to disabled persons. Based on the statutory text and context, the history of the term "place of public accommodation," and a germane appellate decision, he ruled that "the ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations from the definition of 'public accommodations.'" He therefore dismissed the plaintiff's claims that Newsday's website denied deaf and hard-of-hearing individuals equal participation in watching videos and that Newsday failed to make reasonable modifications to the videos to afford access.
In concluding that a website is not a place of public accommodation, the court noted that, of the 50 examples of places of public accommodation set forth in 42 U.S.C. § 12181(7), 49 indisputably related to physical places. Judge Komitee reasoned that Congress could have referred more broadly to all businesses operating in interstate commerce or to all retail or service operations, but it instead focused on physical places. He was not swayed by the argument that, when the ADA was adopted in 1990, the world wide web could not have been anticipated, pointing out that even at that time there were countless other types of businesses operating outside of brick-and-mortar premises (e.g., the Sears Roebuck catalog). The decision also relied on the use of the word "place," which was held to clearly refer to a physical location. Judge Komitee termed the requirement of a physical place of operation as a condition precedent to ADA liability.
Additionally, the court rejected the plaintiff's argument that a 1999 precedent from the Second Circuit Court of Appeals - the appellate court that includes New York - supported a broad interpretation of "place of public accommodation." In Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999), the Second Circuit ruled that an insurer that operated a physical insurance office violated the ADA by refusing to issue a policy based on the plaintiffs' mental health diagnosis. Judge Komitee reasoned that the ruling did not turn on whether a place of public accommodation was involved, but it correctly determined that the ADA applied because the defendant had a physical office that was open to the public.
Finally, the decision notes that public policy considerations favoring accessibility could not carry the day in light of the statutory limitation under which accommodation is required only as to actual places of public accommodation.
It is, of course, far too soon to issue a death certificate for ADA website litigation in New York or elsewhere. This decision may well be reversed on appeal, other judges who have already reached contrary conclusions may well adhere to their prior reasoning, and judges who have not addressed the issue may come to a different conclusion. And the decision would not apply to a business that has a website and a store, office, or restaurant that is a physical place of public accommodation. But there is no doubt that for now, many defendants named in these cases have another arrow in their quiver with which to defend these cases.
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