The Americans with Disabilities Act (“ADA”) provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182.
Although a website is not included in the definition of “public accommodation” under §12181(7), claimants, including those with visual and hearing impairments covered under the ADA, have argued that a website is a “place of public accommodation” under the ADA, and thus, a website must be ADA compliant. Courts are split as to whether the website is covered by the ADA. Some courts have held that the ADA does not apply to websites, especially when there is not a sufficient nexus between the virtual discrimination alleged and a physical place.
For example, recently, the Ninth Circuit Court of Appeals in Cullen v. Netflix, No. 13-15092 (9th Cir. April 1, 2015), and in Earll v. eBAY, Inc., No. 13-15134 (9th Cir. April 1, 2015), held that Netflix and eBay were not subject to the ADA because their website services were not connected to any “actual physical place.” These rulings were based upon a prior Ninth Circuit decision, which held that the ADA applies only to businesses that have a connection to a place where they offer goods and services. See Weyer v. Twentieth Century Fox Film Corp., 198 F. 3d 1104, 1114 (9th Cir. 2000).
The decisions of the Ninth Circuit are in conflict with other recent decisions, including one equally recent decision out of a district court in the First Circuit. In National Federation of the Blind v. Scribd Inc., No. 2:14-cv-162, 2015 WL 1263337 (D. Vt. March 19, 2015), the Court held that a digital library’s website and mobile application were places of public accommodation under Title III of the ADA. In reaching its conclusion, the Court noted that the First, Second, and Seventh Circuits have indicated that Title III applies even in the absence of some connection to a physical place. The Scribd Court also noted that Netflix lost on the same issue in the District Court of Massachusetts. In Nat’l Ass’n of the Deaf v.Netflix, Inc., the Court ruled that the ADA “applies with equal force to services purchased over the Internet.” 869 F. Supp. 2d 196, 200 (D. Mass. 2012).
Given the split in decisions, it is only a matter of time before the Supreme Court is tasked with deciding whether a website is a place of public accommodation under the ADA. Further advancing the notion that the ADA may cover both the virtual as well as the physical is the anticipated release of Department of Justice’s (“DOJ”) long-awaited website accessibility rules. The rules, if ever enacted and which were expected to be released earlier in 2015 but are now expected in 2016, could address new standards and obligations of businesses to make websites ADA compliant. The general consensus, though, is that websites, in the near future, will be considered a “place of public accommodation” under the ADA.
In the meantime, the DOJ has brought enforcement actions against notable U.S. companies. For example, in 2012, the DOJ filed a Statement of Interest against Netflix for failing to caption streaming video, asserting that the lack of captioning violated the ADA. And last year, following enforcement actions, the DOJ entered into settlement agreement with Ahold U.S.A., Inc. and Peapod, LLC, regarding the accessibility of www.peapod.com and its associated mobile application. The DOJ also recently entered into and with H&R Block. The consent decree with H&R Block requires it to comply with Web Content Guidelines (WGAC) 2.0, which the DOJ has recognized as the “international industry standards for web accessibility.
Additionally, a number of U.S. companies have entered into structured settlement agreements with private plaintiffs, following civil suits. These companies, which include Major League Baseball and Bank of America, have agreed to ensure that their websites comply with WCAG 2.0. Thus, whether regulations are in place or not, there will likely be an increase in lawsuits against businesses demanding that their websites become accessible to all.