§7.1 II. The Relevant Guidance— A Divide In Need Of A Bridge

• Jurisdiction: New York

II. The Relevant Guidance— A Divide in Need of a Bridge

According to A Guide to Disability Rights Laws, published by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, in February 2020:

To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

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Title III covers businesses and nonprofit service providers that are public accommodations, privately operated entities offering certain types of courses and examinations, privately operated transportation, and commercial facilities. Public accommodations are private entities who own, lease, lease to, or operate facilities such as restaurants, retail stores, . . . [professional] offices, . . . and recreation facilities including sports stadiums and fitness clubs. Transportation services provided by private entities are also covered by title III.

Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective communication with people with hearing, vision, or speech disabilities; and other access requirements. . . . ⁵⁵⁴

Given recent caselaw, it appears that two general categories may be carved-out at the beginning of the analysis: (a) one having a business/service that is operated solely online via website/Internet, or (b) a website business/service that has some "nexus" to a brick-and-mortar location. This distinction exists because of a very real, and troublesome, Circuit split.⁵⁵⁵ In Haynes v. Hooters of Am., LLC, the plaintiff, a blind business patron, attempted to utilize the website of the restaurant operator utilizing screen reader software. However, the website was not compatible with the software plaintiff used. Plaintiff thereafter brought suit, alleging violations of Title III of the ADA.⁵⁵⁶ Defendant argued that another lawsuit had already been filed against it on nearly identical grounds, and that it was already updating its website to bring it into legal compliance. Because of that, the U.S. district court dismissed plaintiff Haynes' suit. On appeal, the 11th Circuit vacated and remanded. Not only did the Court hold that Haynes was not a party to the prior suit, and therefore could not monitor or enforce the agreement for updating of the website, there was nothing in the record showing that Hooters had updated its website. Therefore, the issues were still "live."⁵⁵⁷ Furthermore, the 11th Circuit held that

Haynes requested in his complaint that the district court direct Hooters to continually update and maintain its website to ensure that it remains fully accessible. Accordingly, even if Hooters' website becomes ADA compliant, Haynes seeks injunctive relief requiring Hooters to maintain the website in a compliant condition. Thus, . . . there is still a live controversy about whether Haynes can receive an injunction to force Hooters to make its website ADA compliant or to maintain it as such. ⁵⁵⁸

In Haynes, the business in question had brick-and-mortar locations, supplemented by the website at issue, and plaintiff's action challenging the lack of ADA compliance by that website presented "live" questions in the opinion of the 11th Circuit.

However, in Morgan v. Joint Admin. Bd., Ret. Plan of the Pillsbury Co., the lawsuit was filed under the ADA by retired disabled persons challenging a retirement plan negotiated to include differing benefits depending upon whether one retired "early" at age 55, at the "normal" retirement age of 65, or "early" due to disability. Among the holdings of the 7th Circuit Court of Appeals, for purposes of this chapter, was the following:

The plaintiffs have, however, another string to their bow. They appeal to the public accommodations provisions of the Act (Title III), which forbid discriminating against disabled persons with respect to access to places of public accommodation. . . . The defendant asks us to interpret "public accommodation" literally, as denoting a physical site, such as a store or a hotel, but we have already rejected that interpretation. An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store. . . . The site of the sale is irrelevant to Congress's goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public. ⁵⁵⁹

The 7th Circuit had previously held, in Doe v. Mutual of Omaha, that:

The core meaning of [Title III, section 302(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) . . . that is open to the public cannot exclude disabled

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