LABOR AND EMPLOYMENT LAW
LALONNIE GRAY, J.
Lacking guidance from Congress, some courts have held that a website is considered a “place of public accommodation” under Title III of the Americans with Disabilities Act. This article considers whether the ADA requires website access for people with disabilities.
Well over half of the world’s population is connected to the Internet.1 In the United States alone, there are over 286 million Internet users, which is approximately 88.5% of the U.S. population.2 With the Internet rapidly growing, an increasing number of individuals with disabilities are alleging that they are not being provided equal access to websites.
After ratification of the Americans with Disabilities Act (ADA), Congress did not include websites in its exhaustive list of public entities under its “public accommodation” definition. Because Congress has not addressed whether a website is a place of public accommodation under the ADA, litigants are taking the issue to court for the judiciary to decide. There are equally strong arguments on both sides of the issue, so it is no surprise that circuits have split on the issue. (Neither the Tenth Circuit nor the Colorado federal district court has addressed the issue.) Due to the circuit split, companies are uncertain of whether they are required by law to make their websites accessible to persons with disabilities.
The ADA Website Issue Develops
On July 26, 1990, President George H. W. Bush signed into law the ADA.3 Congress found that individuals with a disability or regarded as having a disability were being subjected to discrimination in “such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.”4 In passing the ADA, Congress intended to eliminate discrimination against individuals with disabilities.5 Title III of the ADA provides:
No 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.6
Public accommodations are businesses that are generally open to the public and fall into any of 12 defined categories, such as hotel, restaurant, or museum.7 The 12 categories are exhaustive, and the scope of covered entities within each category is very broad. Although Congress amended the Act in 2008, it did not revise the definition of “a place of public accommodation” to include a website.8 Thus, courts have no direct guidance from Congress on whether websites are public accommodations.
Courts Construe “Public Accommodation”
Contrary to Congress’s goal to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,”9 courts are split on whether a website constitutes a place of public accommodation for purposes of Title III of the ADA. Courts in the First and Second Circuits have found that a website constitutes a place of public accommodation for purposes of Title III. In National Association of the Deaf v. Netflix, Inc., plaintiffs alleged that defendant violated Title III of the ADA by failing to provide equal access to its video streaming website, “Watch Instantly,” for deaf and hearing-impaired individuals. Among other contentions, defendant argued that plaintiffs failed to allege the existence of a “place of accommodation” as required for a claim under the ADA. Specifically, defendant disputed that a website in general, and Watch Instantly in particular, can be a place of public accommodation under the ADA. Plaintiffs asserted that defendant was a business providing a subscription service of Internet-based streaming video through the Watch Instantly website and, as such, was analogous to a brick-and-mortar store or other venue that provides similar services, such as a video rental store. The court reasoned that the fact that the ADA does not include web-based services as a specific example of a public accommodation is irrelevant. Rather, the ADA’s legislative history makes clear that Congress intended the ADA to adapt to changes in technology. The court explained that Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations, and as long as plaintiffs could argue that the Watch Instantly website fell within at least one, if not more, of the enumerated ADA categories, Watch Instantly was subject to Title III of the ADA. Next, defendant argued that the Watch Instantly website cannot be a place of public accommodation because it is accessed only in private residences, not in public spaces. The court found defendant’s argument unpersuasive and held that while the home is not itself a place of public accommodation, entities that provide services in the home may qualify as places of public accommodation. In sum, the court held that defendant’s website was a place of accommodation within the meaning of the ADA.
Similarly, in National Federation of the Blind v. Scribd Inc.,11 plaintiffs argued that defendant violated Title III of the ADA because defendant’s website and mobile applications were inaccessible to the blind. Defendant—a digital library that operated reading subscription services on its website and on apps for mobile phones and tablets—contended that plaintiffs did not allege facts demonstrating that it owned, leased, or operated a place of public accommodation because the ADA does not apply to website operators whose goods or services are not made available at a physical location open to the public. The court held that a digital library’s reading subscription services website and mobile applications were places of public accommodation under Title III of the ADA. The court explained that excluding businesses that sell services through the Internet would run afoul of the purposes of the ADA, and the library’s services fell within at least one public accommodation category, including a place of exhibition or entertainment, a sales or rental establishment, a service establishment, a library, a gallery, or a place of public display or collection.
Conversely, the Ninth and Eleventh Circuits have held that a plaintiff must allege a sufficient connection between the website at issue and a physical structure...