ADA Online: Is a Website a "Place of Public Accommodation"?

A lawsuit filed in October claims that Sony's online games—ranging from Everquest and Star Wars Galaxies to Wheel of Fortune—do not provide tools to allow visually impaired users to successfully play the games, and thus violate both the federal Americans with Disabilities Act and California's civil rights law. Stern v. Sony Corp. of America, 09-cv-o7710 (C.D. Cal. Oct. 23, 2009).

The plaintiff and his attorney share the same last name, so the claim may have been filed to get the attention of Sony, which allegedly ignored the plaintiff's repeated efforts to contact the company about this issue. 

But legally, does this lawsuit make a valid claim?

It may. The Americans with Disabilities Act (ADA), Pub. L. No. 101-336, 104 Stat. 327, codified at 42 U.S.C. § 12101, et seq., prohibits state and local governments, and privately-owned "places of public accommodation" from discriminating against individuals with disabilities. 42 U.S.C. § 12182(a).  Department of Justice regulations implementing the statute require that

A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.

28 C.F.R. § 36.303. By using the term "places of public accommodation," it appears that the statute was written primarily with physical locations in mind. 

Yet, in 1996 the U.S. Department of Justice's Office of Civil Rights concluded that these provisions applied equally to Internet web sites, and the following year the U.S. Department of Education concluded that Section 504 of the Rehabilitation Act of 1973 (pdf), codified at 29 U.S.C. § 794—a precursor to the ADA which prohibits discrimination on the basis of disability in federally-funded educational programs and activities—applies to university web sites.

But federal appeals courts have split on the question of whether the ADA's provisions apply beyond actual, physical locations.

Appellate decisions holding that the ADA is not limited to physical locations include Carparts Distribution Center, Inc. v. Automotive Wholesalers' Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir.1994) (“public accommodations” encompasses more than actual physical structures and included defendant insurance company); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 2000), reh’g denied, 204 F.3d 392 (2d Cir. 2000) (ADA applies to insurance offerings); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (dicta noting that a “place of public accommodation” includes public facilities "whether in physical space or in electronic space," including websites); and Rendon v. Valleycrest Productions Ltd., 294 F.3d 1279 (11th Cir. 2002).

In Rendon, the 11th Circuit held that the plaintiff stated a valid ADA claim in alleging that the telephone-based selection process for "Who Wants to Be a Millionaire" was a discriminatory procedure that screened out disabled persons aspiring to compete on the show. The court explained:

A reading of the plain and unambiguous statutory language at issue reveals that the definition of discrimination provided in Title III covers both tangible barriers, that is, physical and architectural barriers that would prevent a disabled person from entering an accommodation's facilities and accessing its goods, services and privileges and intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person's ability to enjoy the defendant entity's goods, services and privileges. There is nothing in the text of the statute to suggest that discrimination via an imposition of screening or eligibility requirements must occur on site to offend the ADA.

Rendon, 294 F.3d at 1283-84 (statutory citations omitted).

But other courts have held that the ADA provisions apply only to physical locations. See Ford v. Schering-Plough Corp., 145 F.3d 601, 612-14 (3d Cir. 1998) (ADA not applicable to insurance policies); McNeil v. Time Ins. Co., 205 F.3d 179 (5th Cir. 2000) (same); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-13 (6th Cir. 1997) (same); and Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (places of public accommodation are “actual, physical places”).

Besides the dicta in Doe v. Mutual of Omaha Ins. Co., mentioned above, two other courts have squarely addressed the applicability the ADA to web sites.

In National Federation of the Blind v. Target Corporation (pdf), No. C 06-01802 MHP (N.D. Cal. Sept. 5, 2006), a federal district court refused to dismiss ADA claims relating to Target's website, holding that the ADA required access to Target's website when inaccessibility would impede the full and equal enjoyment of the goods and services offered in the company's physical stores:

In sum, the court finds that to the extent that plaintiffs allege that the inaccessibility of impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied. To the extent that offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA. 

Slip op. at 11.

In Access Now, Inc. v. Southwest Airlines, Co. (pdf), 227 F. Supp. 2d 1312 (S.D. Fla. 2002), the plaintiffs alleged that Southwest Airlines' website was a place of public accommodation that violated the ADA by not including functions and coding that would make it accessible to the visually impaired. The court dismissed the case, distinguishing Rendon because the telephone selection process in that case controlled access to a physical television studio, and relying on federal regulations that discuss the term "place of public accommodation" solely in terms of physical locations. The court elaborated:

Plaintiffs are unable to demonstrate that Southwest's website impedes their access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency. Having failed to establish a nexus between and a physical, concrete place of public accommodation, Plaintiffs have failed to state a claim upon which relief can be granted under Title III of the ADA.

Access Now, 227 F. Supp. 2d at 1321. The plaintiffs appealed this ruling to the 11th Circuit, which dismissed the appeal on procedural grounds because the plaintiffs' arguments on appeal were not raised before the district court. Access Now, Inc. v. Southwest Airlines, Co. (pdf), 385 F.3d 1324 (11th Cir. 2004) (dismissing appeal).  The appellate court seemed to genuinely regret that it could not address the issues in the case:

In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant. The Internet is transforming our economy and culture, and the question whether it is covered by the ADA—one of the landmark civil rights laws in this country—is of substantial public importance. Title III’s applicability to web sites—either because web sites are themselves places of public accommodation or because they have a sufficient nexus to such physical places of public accommodation—is a matter of first impression before this Court. Unfortunately, this case does not provide the proper vehicle for answering these questions.

Access Now, 385 F.3d 1324, slip op. at 27.

The similar claims in Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003), were dismissed for similar reasons.  In Noah, a Muslim sued AOL over its refusal to remove anti-Islamic comments from its chat rooms, alleging that the policy effectively denied Muslims equal access to the chat rooms, in violation of federal civil rights laws prohibiting discrimination by "place[s] of public accommodation."  See 42 U.S.C. § 2000a(b).   In support of his contention that the civil rights law applied to AOL's chat rooms, the plaintiff cited the cases holding that the Americans with Disabilities Act is not limited to only physical locations. The court dismissed the suit under section 230 of the Communications Decency Act, and because,

Although a chat room may serve as a virtual forum through which AOL members can meet and converse in cyberspace, it is not an "establishment," under the plain meaning of that term as defined by the statute.

Noah, para. 33.

The Fourth Circuit Court of Appeals summarily affirmed.  Noah v. AOL-Time Warner (pdf), No. 03-1770, 2004 WL 602711 (4th Cir. March 24, 2004) (per curiam).

The Stern v. Sony case was filed in the Northern District of California, where the 9th Circuit's decision in Weyer that "places of public accommodation" means "actual, physical places" is binding precedent, and the Central District's ruling in National Federation of the Blind that websites tied to physical locations must comply with the ADA is persuasive authority.  Thus it seems that, because Sony's online games are do not determine access to any actual, physical place, the plaintiff in Stern may have a difficult argument to make.

And what does this all mean for providers of online content? If you're within one of the circuits that have held that "places of public accommodation" includes more than physical locations, you should probably consider taking steps to make your content available to the disabled.  If you're in one of the circuits that has ruled the opposite way, there's currently no such requirement.  But, it may be a good idea; plus it's a good thing to do from a non-legal perspective. The Web Accessibility Initiative has helpful practical advice about how to make your content more accessible to the disabled.


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Related: Agreement with Colleges Over Kindle

In mid-January 2010, the U.S. Justice Department announced agreements with four universities -- Arizona State University, Case Western Reserve University, Pace University and Reed College -- that had promoted use of the Kindle electronic book reader in classes. Under the agreement, the colleges will not use the device as part of the curriculum until the device is fully accessible to the blind and those with low vision, in compliance with the Americans with Disabilities Act (ADA).  (Apparently the Kindle has a text-to-speech function for the electronic books displayed on the device, but not for its menus and controls.)