I. Introduction

On January 1, 1983, a new era for technology began, as the internet would pave the way for millions of consumers, seeking to create a platform for information sharing and communication.[1] The internet has revolutionized the way humans interact, socialize, and seek entertainment,[2] but for some these enjoyments are unattainable.  According to the U.S. Department of Justice (“DOJ”), millions of individuals in the United States have disabilities that impair their use of web technologies.[3] Disabilities take many different shapes and forms, to place into perspective, according to the Centers for Disease Control and Prevention (“CDC”), more than 4.2 million Americans are legally blind or suffer from low to limited vision.[4] It is predicted by the CDC that these 4.2 million people individuals will more than double by the year 2050 to 8.96 million.[5] As of March 2022, about 11.5 million Americans suffer from some sort of hearing impairment, ranging from difficulty in hearing conversations to total hearing loss.[6] The Americans with Disabilities Act (“ADA”) safeguards individuals with these types of disabilities, among others, from discrimination on the basis of disability.[7]

Despite the protections afforded to individuals with disabilities, the recent pandemic shed light on  how outdated and inadequate these protections are.  As the coronavirus disease (“COVID-19”) spread, and the whole world shut down, our society heavily relied on the internet to maintain a social connection within the boundaries of our new word,  causing internet usage rates to increase eighteen percent.[8] For instance, disabled consumers with visual impairments use special software programs called “screen readers” that “read” computer screens, and speech synthesizers “speak” the text.[9] On the other hand, disabled consumers who are deaf or hard of hearing may utilize what is known as “captioning.”[10]Captioning is the process of converting the audio content of a television broadcast, webcast, film, video, live event, and other productions into text by displaying the text on a screen, monitor, or other visual display system.[11]  Captions not only display words as the textual equivalent of spoken dialogue or narration, but also include speaker identification, sound effects, and music description.[12]  In an effort to ensure disabled consumers enjoy services, as non-disabled individuals do, Section 508 of the Rehabilitation Act of 1973 requires U.S. Federal government agencies to provide equal access to information and data, regarding Federal departments and agencies, to individuals with disabilities.[13]

Private sector businesses, however, are not subject to the same technological standards.[14] As early as 2002, disabled individuals have been worried for their right to access the internet equally.[15] In 2008, the DOJ issued a  Notice of Proposed Rulemaking to adopt the revised 2004 ADA Guidelines and revise Title III regulations to address the issues raised by the public.[16] However, despite the public requesting the DOJ to issue web accessibility regulations under the ADA there was no proposal for web accessibility provisions.[17] Fast forward to the COVID-19 Pandemic, accessibility to these services have never been more essential. The pandemic invited an influx of complaints from disabled consumers who alleged that  they could not access websites due to impediments when purchasing goods or services.[18] In 2021, the total number of lawsuits filed in federal courts stood at 2,895 claims, a jump of 372 cases from 2020.[19] Consumers with disabilities alleged that they could not use websites because they were not designed to be ADA compliant and/or work with compliant technologies.[20] In comparison to pre-pandemic numbers, this was a 14.3% increase from 2020.[21]

Despite living in a society with an emphasis on inclusivity, there seems to be a long journey ahead when it comes to the internet. Part II of this article will discuss: (1) if under Title III the internet constitutes as a place of public accommodation regarding consumers with disabilities being unable to access websites for their basic needs; (2) the current controlling laws at play within the United States and the circuit split between the First, Second, Third, Sixth, Seventh, and Eleventh Circuit courts. Part III will analyze how private sector companies have been sued and the remedies afforded to those plaintiffs. Finally, Part IV will conclude with a proposal that Congress should enact a new statute that will establish exactly what is proper internet etiquette for private sectors with public internet forums.

II. Background

1. Scope Of The ADA

The ADA was signed into law on July 26, 1990, by President George H.W. Bush.[22] This comprehensive act prohibits the discrimination of people on the basis of disability while ensuring the same opportunities as non-disabled individuals to participate in the mainstream of American life.[23] The ADA was modeled after the Civil Rights Act of 1964 and is considered to be an “equal opportunity” law for those with disabilities.[24] The ADA protects those with “disabilities”, which is defined as “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.”[25]

The ADA affords various protections including employment discrimination, public services, telecommunications, and public accommodations.[26] Specifically, Title III of the ADA prohibits discrimination on the basis of disability by public accommodations and requires these places of public accommodation and commercial facilities to be designed, fashioned, and constructed in compliance with the ADA accessibility standards.[27] Under Title III 42 U.S.C. § 12181, there is a proactive duty on all businesses to remove obstacles that impede access to those the ADA is designed to protect.[28] There are 12 explicit categories of places of public accommodation under the ADA:

“1) Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);

2) Establishments serving food or drink (e.g., restaurants and bars);

3) Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums);

4) Places of public gathering (e.g., auditoriums, convention centers, lecture halls);

5) Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers);

6) Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);

7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation).

8) Places of public display or collection (e.g., museums, libraries, galleries);

9) Places of recreation (e.g., parks, zoos, amusement parks);

10) Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);

11) Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and

12) Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).”[29]

Of the 12 categories listed in the ADA, the internet is not expressly listed on its face.[30]  Furthermore, examples of public accommodations include privately-owned, leased, or operated facilities such as hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, and movie theaters.[31]  All of the aforementioned examples are in relation to physical structures. However, the issue causing Federal Courts to split has been narrowly presented as to whether the internet, which in essence is not a physical structure, constitutes as a place of public accommodation under the purview of Tittle III.[32]

1. How Federal Courts View This Issue

There are two approaches courts have used when deciding cases of public accommodation in relation to internet usage, purposivist and textualist interpretations.[33] While purposivists argue that courts should prioritize interpretations that advance the statute’s purpose, textualists maintain that a judge’s focus should be confined primarily to the statute’s text.[34] The majority approach, which is followed by the Third, Fifth Sixth, Ninth, and Eleventh Circuits uses a textualist canon while the minority purposivist approach is followed by the First, Second, and Seventh Circuits.

1. Majority Textualist Approach

Courts in the Third, Fifth, Sixth, Ninth, and Eleventh Circuits have interpreted “place of public accommodation” to apply to an actual, physical place.[35] Thus, websites are not considered places of public accommodation in states under these circuits’ jurisdiction. Under this textualist approach, the goods and services the person with disabilities seeks to access must have a sufficient “nexus” with such a real-world place.[36]

The Ninth, Third, and Sixth, and Eleventh Circuits each considered ADA claims brought by an employee who received benefits through his or her employer that were issued by a third-party insurance company.[37] All four courts held that Title III did not apply because there was not a sufficient connection between the discrimination the plaintiffs alleged and a physical place.[38]

• Nexus Test

The Cullen court, subject to the Ninth circuits holding,[39] laid out the elements that a plaintiff must show to bring a successful claim under Title III. Therefore, a plaintiff must show that: “(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied a public accommodation by the defendant because of his disability.[40] The Ninth Circuit previously held that a “place of public accommodation” under the ADA, is limited to “an actual physical place”[41] and the Cullen court sustained that holding.[42]  The reasoning followed that Netflix was a streaming video service website where consumers can access videos with an internet connection and not a physical location where they offer a physical center for consumers come to stream videos. However, the court displayed sympathy with the plaintiff and acknowledged a discrimination claim but were bound by the higher court.[43]

The Eleventh circuit adjudicated a case that affected Winn-Dixie Grocery stores visually impaired customers.[44] In Gil v. Winn-Dixie Stores, Inc., a legally blind patron brought action against the grocery chain alleging a violation of the ADA based upon its website.[45] The patron was a frequent customer in the physical stores and upon hearing there was a website that offered a more efficient way to fill his prescription he gave it a try.[46] Upon visiting the website,  it was clear the website was inaccessible to visually impaired customers because it was incompatible with screen reader software used by visually impaired patrons to vocalize the content of websites.[47] After considering that the Winn-Dixie website had limited functionality and that all interactions initiated on the website had to be completed in store (i.e., physically picking up a prescription), the court concluded that the plaintiff’s inability to access the website did not create an “intangible barrier” to plaintiff’s full enjoyment of Winn-Dixie’s goods and services.[48] This notion of “intangible barriers” was defined in Rendon v. Valleycrest Productions, Ltd., where the court explained them to be “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.”[49] The Court of Appeals for the Eleventh Circuit held a textualistic ruling as they cited the text of the ADA and its lack of offense from sheer imposition.[50]

The dissent reached the opposite conclusion, reasoning that because Gil is not able to access the services or privileges offered on the website, he is therefore “treated differently” than sighted customers because of the absence of an auxiliary aid on the website.[51] The majority argued that the dissent was incorrect since Gil’s mere inability to communicate with and access the services available on the website does not mean that Winn-Dixie necessarily violated Title III.[52] Rather, the majority noted that for there to be a violation the inaccessibility of the website must serve as an “intangible barrier” to Gil’s ability to communicate with Winn-Dixie’s physical stores, which results in Gil being excluded, denied services, segregated, or otherwise treated differently from other individuals in the physical stores.[53]

Further, the Gil court emphasized that because all the transactions occurred in store that Gil was not being excluded or denied services.[54] To date, the Eleventh Circuit is the only federal circuit court to explicitly hold websites as not being places of public accommodation under ADA definition.[55]

• The Minority Purposivist Approach

The minority approach is followed by the First, Second, and Seventh Circuits and considers websites to be places of public accommodation as “service establishments,” submitting to one of the 12 categories of facilities within the meaning of the ADA’s definition of place of public accommodation.[56]

The First Circuit in Carparts Distribution Center, Inc. v. Auto Wholesaler’s Association of New England, was first to hold that a “place of public accommodation” is not limited to a physical place.[57] The court held that by including “travel service” on the list of examples in the definition, Congress clearly intended that “service establishments” could include providers of services that do not require a person to physically enter a structure or site but may instead conduct their business by telephone or correspondence.[58] The First Circuit stressed their reasoning as being compliant with the legislative history of the ADA.[59] They correctly stated “[i]n drafting Title III, Congress intended that people with disabilities have equal access to the array of goods and services offered by private establishments and made available to those who do not have disabilities.”[60]

In National Association of the Deaf v. Netflix, the U.S. District Court of Appeals for the First Circuit, the District of Massachusetts, reached the opposite conclusion.[61] The court held that excluding companies that deliver services online from the definition of places of public accommodation would frustrate Congress’s intent that people with disabilities “fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”[62] The court further explained that while it would have been impossible for Congress to include explicit internet accessibility language in 1990 when the act was established, Congress intentions were for the ADA to adapt to changes in technology.[63] While Congress may not have been able to predict just how much technology would evolve, the avant-garde writers of the act knew that as time went on, the world would evolve. It would be naïve to believe that Congress did  not anticipate the act do extend to any and all places that people they intended to protect would be as time went on.

1. The Power That Enforces These Laws

The protections afforded by Title III of the ADA’s regulations are enforced by the Department of Justice (“DOJ”).[64] In 2010 the Department of Justice (DOJ) initiated rulemaking activity to express its view that all business websites, including those unconnected to an actual, physical space, are “places of public accommodation” under Title III of the ADA.[65] While the DOJ spearheaded, then abandoned, the idea of making a definitive decision on whether the internet should be a place of public accommodation, they have yet to take a definite stance.[66] The DOJ executed regulations for website accessibility under Title II of the ADA, which governs nondiscrimination on the basis of disability for State and Local Government services.[67] Title II applies to state and local government entities and agencies, whereas Title III applies to private entities that are places of public accommodation.[68]

Only in 2022 did the DOJ admit that “many websites from public entities (i.e., State and local governments) fail to incorporate or activate features that enable users with disabilities to access the public entity’s programs, activities, services, or information online.”[69] Under the Biden-Harris administration, DOJ appears to have returned to the Obama-era view that all customer-facing websites are subject to Title III of the ADA.[70] The administrations March 18 guidance, Guidance on Web Accessibility and the ADA, suggests the DOJ may be gearing up to finally do more in this space.[71] The DOJ has announced that in April 2023 a Notice of Proposed Rulemaking (NPRM) is scheduled with no comment any later than June 2023.[72]

1. Present-day Measures Taken For Compliance

Despite having to wait until June 2023  for the DOJ to step up, businesses can still take action. With the internet not being an explicitly listed public accommodation, other organizations have taken the initiative to establish accessibility. The World Wide Web Consortium (“W3C”) is an international standards organization that develops the technical standards and guidelines for the Web.[73] The W3C is committed to bringing the web to its true potential by including and promoting a high degree of usability for people with disabilities.[74] The Web Accessibility Initiative (“WAI”) is an initiative of the W3C.[75] WAI develops accessibility guidelines for web content and applications, browsers, and authoring tools, develop resources to improve web accessibility evaluation processes and tools, and looks to promote a unified international acceptance of web accessibility standards.[76]

The guidelines compiled by WAI are called the Web Content Accessibility Guidelines (“WCAG”) 2.0.[77] The courts and have relied on WCAG 2.0,[78] while the DOJ has relied on on WCAG 2.0 AA Conformance, for determining whether a website violates Title III and as the requirements for a discriminating website to become Title III compliant.[79]WCGA 2.0 has 5 criteria that must be met for internet websites to conform. WCAG 2.0, AA Conformance builds off WCGA and adds requirements that make the accessibility much more aesthetic to the user.[80]

III. The Implications for Businesses

The Eleventh Circuit’s decision is significant for businesses that exclusively operate online, at least within the jurisdiction of the Eleventh Circuit, because it holds that a website itself is not a place of public accommodation under the ADA.[81]  Additionally, brick-and-mortar businesses that provide alternative means for disabled patrons to obtain goods and services, such as in-person or by phone or email, instead of just through a website, will find support in the court’s discussion of the “nexus” requirement.[82]

Companies that operate websites will want to continue to monitor developments in this area, as the courts continue to process a substantial number of website accessibility claims filed by private party advocates. In addition, there is some indication that the Justice Department in the Biden Administration may decide to approach ADA cases with a more robust enforcement posture.[83]

IV. Analysis:

The minority approach proves to enhance the purpose of the ADA, which is to “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[84]

The limitations on people with disabilities to access proper healthcare proved to be a challenge during the COVID-19 pandemic.[85] “Equal access to healthcare is one of the most important rights guaranteed by the Americans with Disabilities Act,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division.[86] In November 2021, the DOJ announced a settlement agreement achieved with Rite Aid to make its online COVID-19 vaccine registration portal accessible to individuals with disabilities.[87] Rite Aid has agreed to make content about the COVID-19 vaccine, including the forms for scheduling an appointment to get the vaccine, conform to the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level AA.[88]

The finances necessary to become WCAG accessible are costly. ADA Compliance first requires that you assess the damage, starting with an audit from $500 to $10,000.[89] Additionally, the cost of making your website accessible can from $3,000 to $50,000 depending on the size and code your website is written in.[90] While this is a financial burden on website owners, the empathy they have to make sure everyone who visits their site can enjoy the experience the same is honorable.

Furthermore, to make up for the hit on small businesses, a tax credit is available to employers with gross receipts not exceeding $1,000,000 or that had no more than 30 full-time employees when they provided reasonable accommodations to individuals with disabilities in the previous year.[91] An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA.[92]

While the cost to create a website may be great, it is nothing compared to the cost of litigation. When companies are sued for their websites being inaccessible they often get outside counsel with a billing of approximately $600 an hour.[93] In response to its ruling in Gil, Winn-Dixie not only had to build their website to be WCAG accessible, but they were also to pay $250,000.[94] In Nat’l Ass’n of the Deaf v. Harvard Univ., the court dismissed Netflix’ Motion for Summary Judgment and held that universities-sponsored online content must be made accessible to people with disabilities.[95] On November 27, 2019 the National Association of the Deaf (N.A.D.) won its landmark settlement with Harvard University that instituted new guidelines to make the university’s website and online resources accessible for those who are deaf or hard of hearing.[96] The settlement created the most comprehensive set of online accessibility requirements in higher education.[97] Harvard was responsible for over $1.5 million dollars in attorneys costs and fee’s. [98] In Netflix, the N.A.D. successfully won over $700 thousand in attorney costs and fees.[99]

An analysis of 3,500 randomly selected websites across 22 industries, found that 83 percent of e-commerce, 78 percent of health care, and 77 percent of jobs and career sites had accessibility issues blocking or hindering a screen reader user’s ability to complete critical tasks.[100] This included such as viewing product descriptions, completing a purchase, filling out an application, or booking an appointment.[101] Societal benefits would only be natural with such a large percentage of the population barred by these limitations. While the cost to create such a compliant website may be substantial, it is not only the most financially strategic option but ethical option.

V. Conclusion

As it currently stands, the DOJ remains complacent without definitive action on whether the internet constitutes as a place of public accommodation. At the same time, representatives of the department have made statements on the necessity for inclusivity on the internet.[102] Additionally, the courts offer no clear guidance on how to proceed. Establishments are left to balance the odds, become WCAG compliant on their own initiative at a cost or hope they never receive the exorbitant lawsuit at their door.

The burden remains on Congress to create and pass meaningful legislation, so business know what their duties are and how to comply with them. It is theoretical to believe  that these corporations, who have established themselves as such important actors in our daily lives, would take initiative to help their community members in need. In order to alleviate this issue at hand, Congress must enact law that expands the current definition of a public accommodation to all places where people with disabilities visit, both physically and virtually.