Websites as “places of Public Accommodation”: Amending the Americans With Disabilities Act in the Wake of National Federation of the Blind v. Target Corporation

• Publication year: 2006
• Citation: Vol. 8 No. 2006

Isabel Arana DuPree⁰

The question of whether Title III of the Americans with Disabilities Act does or should apply to websites has been an issue of public interest since the advent of the Internet. In National Federation of the Blind v. Target Corporation, the Ninth Circuit was the first to find that Title III did apply to a website. Although Target was based on a specific set of facts, the decision highlights the need for Congress to amend the Act to address websites. This Recent Development explains why it is appropriate for Congress to take action now and examines several possible approaches Congress could take in amending the Act to address its application to websites.

I. Introduction

In National Federation of the Blind v. Target Corporation,¹ Bruce Sexton,² a blind individual, filed suit against Target Corporation ("Target") for discriminating against disabled persons.³ In their complaint, the plaintiffs asserted that because Target's website, Target.com, was inaccessible to the blind, the defendants violated the Americans with Disabilities Act (ADA).⁴ Target filed a motion to dismiss stating the plaintiffs' claim was not actionable because Target.com was not a "place of public accommodation" recognized by Title III of the ADA⁵ (Title III).⁶ Ultimately, the court found the plaintiffs' claim viable because Target.com had a nexus to Target stores, which are places of public accommodation.⁷

Target highlights the need for Congress to reexamine whether websites are potential places of public accommodation,⁸ and to amend the Act to address the websites to which Title III should apply. In Target, the Ninth Circuit became the first to allow an inaccessibility claim to proceed against a business website under Title III.⁹ While the holding in Target was highly fact specific, the decision could have serious implications for websites or other remote access accommodations not explicitly addressed in the "public accommodation"¹⁰ language of Title III. By amending Title III, Congress will proactively address which websites are subject to Title III. Thus, Congress should reexamine the definition of a public accommodation in the ADA and either include a clearly defined set of websites or explicitly exclude websites altogether.

This Recent Development examines the need for Congress to revisit Title III to add websites as public accommodations. Part II examines the background of the ADA, including a detailed view of the language of Title III. Part III provides a review of three recent opinions that were most influential on the Ninth Circuit's decision in Target, and how the court reconciled these opinions to reach the Target decision. Part IV addresses Target's implications and the questions raised by the lack of a clear rule following Target. Part V concludes with an examination of why Congress should amend the language of Title III to address websites, how Congress could proceed, and whether narrow or broad language addressing websites would better serve the purpose and administration of Title III.

II. The Americans with Disabilities Act

A. Background of the Americans with Disabilities Act

People affected by disabilities most often rely on other people, businesses, and governments to make daily activities such as crossing the street, reading a menu, or using an automated teller machine ("ATM") less burdensome. Seventeen years ago, Congress passed the ADA in an effort to eliminate discriminatory barriers for the disabled in everyday living.¹¹ In the ADA, Congress noted that millions of Americans suffer from discrimination on the basis of their mental or physical disabilities.¹² Furthermore, the discrimination faced by this substantial minority of Americans impacts all aspects of their lives, including employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.¹³ By enacting the ADA, Congress intended to provide enforceable standards to address discrimination against the disabled in these areas, and to vest the enforcement role in the Federal Government.¹⁴

B. Title III and "Place of Public Accommodation"

Title III addresses discrimination in the context of public accommodations.¹⁵ It prohibits a place of public accommodation from denying disabled persons the "full and equal enjoyment" of that public accommodation.¹⁶ Title III is different from other antidiscrimination statutes because it requires places of public accommodation to take affirmative action to prevent discrimination against the disabled.¹⁷

The statute identifies four contexts in which discrimination by a place of public accommodation could exist.¹⁸ First, discrimination will occur when an accommodation imposes eligibility criteria which either "screen out or tend to screen out" disabled people from equal enjoyment of the accommodation.¹⁹ For example, requiring someone to be able to walk as a prerequisite for being a contestant on a television game show would be discrimination under Title III.²⁰ Such eligibility criteria are allowed only to the extent they are necessary for the provision of goods or services being offered by the public accommodation.²¹ It is not necessary that contestants be ambulatory for a game show to provide the services it offers to the public.

Second, discrimination under Title III occurs if a public accommodation fails to make reasonable modifications to its policies or procedures in order to make its services or goods available to the disabled.²² However, modifications that would alter the nature of the services or goods offered by the accommodation are not required.²³ In other words, a bookstore may be required to make its facilities handicapped accessible, but it would not be required to start selling books printed in Braille because such a modification alters "the nature or mix of goods" being offered by the book store.²⁴

Third, discrimination includes failure of a public accommodation to take necessary steps to ensure disabled persons are not denied services or segregated because there are no auxiliary aids or services available at the accommodation.²⁵ Providing auxiliary aids or services is not necessary when such a provision would fundamentally alter the goods or services of the accommodation, or would result in an undue burden.²⁶ However, the auxiliary aid or services requirement is most concerned with ensuring the public accommodation communicates effectively with customers.²⁷ For example, if a restaurant server is available to read the menu to blind patrons, failing to provide a menu printed in Braille is not discrimination under Title III.²⁸

Finally, discrimination includes a public accommodation's failure to remove structural barriers when removal is possible.²⁹ Removal of barriers may require any number of actions, including installation of a ramp, rearranging tables or chairs, or repositioning telephones.³⁰ For example, existing and new banks would be required to adjust the height of ATMs to make them accessible to people in wheelchairs.³¹ However, an existing bank's need to remove barriers will be assessed in light of the expense associated with such an alteration, while new banks would have to make ATMs "readily accessible to and usable by persons with disabilities."³²

In addition to defining what constitutes discrimination by a public accommodation, Title III also lists twelve general categories³³ qualifying as public accommodations for purposes of the statute, to the extent that their operations "affect commerce."³⁴ The categories include a variety of brick and mortar structures ranging from hotels and stores to schools and fitness centers.³⁵ However, Title III does not expressly include websites as places of public accommodation.³⁶

III. Interpretations of "Place of Public Accommodation"

Three cases³⁷ were instrumental to the Target court's holding that Target.com was subject to Title III in certain contexts.³⁸ These cases, when combined with Target, illustrate a split among circuits in the interpretation and application of the place of public accommodation standard.

A. Pre-Target Decisions

1. Stoutenborough v. National Football League, Inc.

In Stoutenborough, a group of hearing impaired individuals sued the National Football League (NFL) claiming "the [NFL's] 'blackout rule,' which [prohibited] the live local broadcast of home football games . . . before game-time, [violated] the [ADA]."³⁹ The plaintiffs stated the blackout rule discriminated against them "in a disproportionate way because they [had] no other means of accessing the football game[s] 'via telecommunication technology.'"⁴⁰ For this reason, the plaintiffs claimed they were being denied the "substantially equal" access the ADA required.⁴¹ Additionally, the plaintiffs argued the services provided through the television broadcast were offered as "services, benefits, or privileges in places of public accommodation."⁴²

The Sixth Circuit held that the plaintiffs failed to state a claim for relief, and granted the NFL's motion to dismiss.⁴³ Persuaded by the defendants'⁴⁴ argument, the court held the blackout rule was not discriminatory because "it [applied] equally to both the hearing and hearing-impaired."⁴⁵ Since all viewers were prevented from watching a blackout game, the plaintiffs did not have a viable discrimination claim.⁴⁶

Significantly, the Sixth Circuit found none of the defendants were entities to which Title III applied.⁴⁷ Moreover, the plaintiffs sought a service, a televised broadcast, which in no way involved a place of public accommodation.⁴⁸ The game the plaintiffs wanted to view was played in a place of public accommodation;⁴⁹ however, the challenged service (i.e., the television broadcast) was not provided by the place of public accommodation. Therefore, Title III did not apply.⁵⁰

2. Rendon and Access Now, Inc.

In Rendon v. Valleycrest Productions, Ltd.,⁵¹ a group of hearing and mobility impaired plaintiffs brought...