places of public accommodation

Internet as a Place of Public Accommodation and Standing

January 30, 2018 By William Goren 3 Comments

As I have mentioned previously, I am not afraid to blog on cases blogged on by others. Today, is such a situation. Richard Hunt in his Access Defense blog, which you can find in my blogroll, has blogged on a couple of cases recently, and I thought that I could add my own perspective to them. I will also throw in a third case as well in the process.

The topic for this week is website accessibility both in terms of standing and in terms of whether Internet only businesses are subject to title III of the ADA at all. The cases we will be discussing are: Carrolll v. Northwest Federal Credit Union from the Eastern District of Virginia; Del-Orden v. Bonobos Inc. from the Southern District of New York; and Nanni v. Aberdeen Marketplace Inc, from the Fourth Circuit. As usual, the blog is divided into categories and they are: Carroll; Not so Fast Says Nanni v. Aberdeen Marketplace Inc.; Not so Fast Says Del-Orden v. Bonobos Inc.; and takeaways. The reader is free to read any or all of the categories, but probably will want to read the whole thing since all the categories are interrelated.

Carroll

Carroll is a serial plaintiff who went after the Northwest Federal Credit Union when he found out that the website was not accessible to the blind and visually impaired. Northwest Federal Credit Union is a credit union chartered by the federal government whose membership is current or former employees of the Central Intelligence Agency or their immediate family or household members. Plaintiff is not included in that membership field nor did he allege any facts in his complaint suggesting he is a CIA agent or otherwise eligible to become a member of the credit union.

The court reasoned that any planned visit to the website in the future was immaterial unless the plaintiff could show that he was eligible to use the services offered on that website. Since the defendant could not demonstrate he was entitled to participate in any of the services, he could not show any redressable injury. Accordingly, he did not have standing to pursue the case.

The court also reasoned that a website cannot be a place of public accommodation because in the list of public accommodations, websites are not included. Further, the court said that not only are websites not found on the list, but the statute only lists brick-and-mortar places. Finally, Congress has amended the ADA, and at no point, did they choose to add websites as a public accommodation.

Not so Fast Says Nanni v. Aberdeen Marketplace Inc.

Carroll’s standing discussion arguably is saying that a tester cannot have standing. If that is the argument, the Fourth Circuit, which is the same Circuit that Carroll would be appealed to, may well have a different take on it. In Nanni, the Fourth Circuit held that a person’s status as an ADA tester- and for that matter, his litigation history as well-, does not strip a person of standing to sue. According to the Fourth Circuit, a citizen’s right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and is granted and protected by the federal Constitution. So, a person’s motivation for pursuing ADA claims does not deprive him or her standing to sue.

III

Not so Fast Says Del-Orden v. Bonobos Inc.

Del-Orden is the tour de force as to why Carroll arguably gets it wrong with respect to the public accommodation piece and that analysis, taken from Del-Orden, goes as follows:

Carroll is simply wrong when it says that ALL of the places listed in 42 U.S.C. §12181(7) our strictly physical spaces. 42 U.S.C. §12181(7)(F) specifically lists travel services among the services defined as public accommodations and travel services have never required the existence of a physical structure for the services to be utilized.
Congress intended that the ADA be read broadly in light of its remedial aims and that it be construed to keep pace with changing technology. Accordingly, the term “other sales or rental establishment,” can be fairly read in today’s world dominated by e-commerce to include a commercial website and therefore, has a textual basis in the statute.
Congress’s purpose in enacting the ADA was broad. That is, to remedy widespread discrimination against individuals with disabilities.
Congress found physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities are precluded from doing so because of discrimination.
Congress found that historically, society intended to isolate and segregate persons with disabilities, and, despite some improvement, the discrimination against individuals with disabilities continues to be a serious and pervasive social problem.
After thoroughly investigating the problem, Congress concluded that there was a compelling need for a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities and to integrate them into the economic and social mainstream of American life.
Congress’s purposes in adopting the ADA would be frustrated if the term public accommodation was given a narrow application where access to the vast world of Internet commerce falls outside the statute’s protection. Today, few areas are more integral to the economic and social mainstream of American life than Internet websites.
Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering.
A House Committee Report specifically stated that the types of accommodation and services provided to individuals with disabilities under all titles of the bill should keep pace with the rapidly changing technology of the times.
Limiting title III’s scope to brick-and-mortar venues would be inconsistent with Congress’s intention that the ADA keep pace with rapidly changing technology of the times. Such a holding renders title III effectively impotent to broad swaths of social and economic life. That would be a result contrary to the broad remedial purpose of the ADA, which has been described as a milestone on the path to a more decent, tolerant, progressive society.
Congress need not perpetually refresh and update legislation where a broad but textually fair construction achieves the statute’s explicit aims, which is the providing of a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Accordingly, the ADA must be read, like other broadly worded statutes, in a way reflecting an intentional effort to give the flexibility necessary to forestall obsolescence.

Thoughts and Takeaways:

Del-Orden also has a couple of other points well worth mentioning. First, it also adopted the gateway theory. In particular, it noted that the ADA prohibits an owner or operator of such a place from discriminating in the provision of the goods or services of that place of public accommodation. It is “of’ and not “at” or “in” that is the critical distinction. The two terms simply do not mean the same thing and to suggest otherwise does not make much sense. There is no indication that Congress intended such unorthodoxy. Further, it makes little sense to limit title III’s goal to discrimination in the provision of goods or services literally consumed in a place of public accommodation.
Del-Orden also says that when it comes to mootness, the case still continues if what has not been fixed with respect to the website still denies a person with a disability meaningful access to that website.
It is clear in the Fourth Circuit that testers have standing. What is not clear is whether the tester must also be capable of using the premises or the website. On that, there may be some room for argument with respect to the Northwest Federal Credit Union. Of course, different story if the plaintiff is someone eligible for the Northwest Federal Credit Union.
It is absolutely true that Congress did not factor the Internet into the ADA when it was amended. It is possible that was unintentional or it is possible the votes were not there. The lack of the Internet being added to the ADA when the ADA was amended is the best argument against places of public accommodation being Internet only sites. On the other hand, you do have the congressional report that says the ADA is meant to evolve with technology. You also have the fact that the Internet has come to dominate society and that the ADA is very much about integration of people with disabilities into mainstream society. In today’s world that would be a very difficult thing to do if the Internet is left outside of the equation. Further, there are many good policy reasons, discussed above, why the ADA should be construed broadly so as to allow Internet only sites or sites that are gateways to brick-and-mortar stores to be considered a place of public accommodation.
If you are a trade association or a credit union and your website is not accessible, Carroll may give you some flexibility as to cutting down on the number of people that might have standing to sue you. Keep in mind, all you are doing is cutting down on the number of people likely to sue because this case would not prevent a person who could be a member and who cannot access the website from suing under title III of the ADA. Also, this is just one court, the Eastern District of Virginia, and may not be persuasive in other courts. Finally, there is the argument that testers do have standing to sue under the ADA just as they do under the Fair Housing Act.
Predicting the Supreme Court is impossible (a case like this will definitely make it to the Supreme Court someday), but if I were a plaintiff, I would take my chances with respect to tester standing and the Internet being a place of public accommodation. As discussed and mentioned numerous times before, persons with disabilities have fared very well at the Supreme Court outside of the employment context (speaking of which, the plaintiffs in Sevorson have requested cert.). It isn’t clear to me whether in the unusual fact pattern of Northwest Federal Credit Union whether the tester counter argument will prevail. Even so, all it would take would be for a person with a disability who is eligible for that particular website’s services to sue in order to get around that problem. Considering that this federal credit union focuses on the CIA and that a person in the CIA could get injured, it seems only a matter of time before someone who could be a member of this website will sue because he or she could not meaningfully access the website. So, failing to fix the website probably only delays the inevitable.
In light of ¶ 6 and the Fourth Circuit becoming more progressive toward persons with disabilities, an appeal might be in order. Also, as we discussed here, the Department of Justice has recently written that it is very receptive to Internet only sites being considered places of public accommodations.
It is always better to design websites with accessibility in mind before they go live, rather than do it later. Consider having your website tested by persons with disabilities. Also, make sure the website is meaningfully accessible to persons with multiple disabilities.

Sovereign Immunity in the Absence of Constitutional Violations

November 15, 2017 By William Goren 3 Comments

The capitol Building — Legislative Branch

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11^th amendment and also defended under the 10^th amendment as well.

Court’s Reasoning

In rejecting the defendants 11^th and 10^th amendment claims, the court reasoned as follows:

No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14^th
When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14^th amendment; and 3) if the misconduct violated title II but not the 14^th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
Plaintiff did not allege a violation of the 14^th amendment in his complaint.
Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14^th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
Finally, the court found that any 10^th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

Takeaways:

I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!

Must the Internet be accessible to comply with the Americans with Disabilities Act?

June 23, 2012 By William Goren 9 Comments

I have written over the years several times about the Internet and whether it needs to be accessible to persons with disabilities. That discussion appears in my book. I also wrote an article on whether colleges and universities home pages need to be accessible to people with disabilities. Finally, I wrote an article on whether law firms must have their website be such so that they are accessible to people with disabilities. As mentioned in those articles, there are several lines of thought on this. First, one line of thought is that the ADA applies in electronic space ( Doe v. Mutual of Omaha Insurance Company 179 F.3d 557 (seventh circuit 1999). Second, another line of thought is that the ADA only applies in physical space ( Access Now, Inc. v. Southwest Airlines Company 227 F. Supp. 2d 1312 (S.D. Fla. 2002). A third line of thought Is that the Americans with Disabilities Act applies to the Internet where the Internet is a gateway to a brick-and-mortar store. ( See National Federation of the Blind v. Target Corporation 452 F. Supp. 2d 946 (N.D. Cal. 2006)).

So what about if you’re watching a Netflix movie and the movie is not closed-captioned. I personally have faced this. While I have not watched Netflix in the streaming content, I have watched it on DVD. There are many DVDs that are not close captioned. This makes it very difficult for me to view the movie. Would this be subject to a violation of the ADA claim? That is, would the ADA force Netflix to close caption its DVDs? What if you watch the movies by streaming, would the ADA force Netflix to make sure that the streaming was close captioned? How does that play with the recently signed 21st-Century Communication Video Accessibility Act of 2010, which says that things shown on TV and then migrate to the Internet must be close captioned after a certain date.

A case that addresses all these questions is National Association of the Deaf v. Netflix, Inc. , 2012 WL 2343666 (D. Mass. June 19, 2012). In this case, a deaf person, the National Association of the Deaf and the National Association of the Deaf’s Massachusetts affiliate brought suit against Netflix alleging that its streaming, which was not close captioned, violated the Americans with Disabilities Act. The defendant responded that the Americans with Disabilities Act was not violated and that the Americans with Disabilities Act was preempted by the 21st-Century Communication Video Accessibility Act of 2010.

The court was having none of these arguments. First, the court said that the ADA was meant to evolve with technology. Second, the court read the categories of what is a place of public accommodations and assumed they applied in the context of the Internet regardless of how the product of the business is consumed because the ADA covers the services “of” a place of public accommodation and not services “at” or “in” a place of public accommodation. National Association of the Deaf 2012 WL 2343666, at *4 (The National Federation of the Blind case made the same argument). For example, Netflix could well be a service establishment because it provides customers with the ability to stream video programming through the Internet. It could also be a place of exhibition or entertainment because it displays movies, television program and other content. Finally, it could be a rental establishment because it engages customers to pay for the rental of video programming (Id. at At *3). In other words, there is no reason why these categories could not apply in electronic space.

A business entity sued for not being accessible in accordance with its obligations as a place of public accommodation under the Americans with Disabilities Act must also be the entity that owns the place that is being sued. Netflix claimed that it was not such an entity. However, Netflix did admit that it was working to provide captioning for the content on it streaming service. That was enough for the court to say that Netflix had some degree of control over the situation. Id. at *5.

Finally, the defendant tried to claim that the 21st Century Communications and Video Accessibility Act of 2010 precluded claims under the Americans with Disabilities Act and/or conflicted with the Americans with Disabilities Act. The court was having none of this either. Nothing in the 21st-century Communications Act suggested that that Act preempted the Americans with Disabilities Act. Further, the court saw no conflict between the two acts because the scope of the 21st-century Communications Act is fairly narrow. That is, that act requires captioning of things originally shown on TV that make its way to the Internet after a certain date. Much of that may not even be applicable to the Netflix situation. Id. at **6-10.

So what does this all mean? It means that disability rights advocates have now been given the green light to think beyond the three traditional lines of thought that had previously existed on whether an Internet site could be subject to the Americans with Disabilities Act. It also means, that defendants must be aware that their exclusively online businesses even if they don’t fit the traditional lines of thought that existed previously, may now be subject to the Americans with Disabilities Act. This case is significant because of the new approach that it takes. That is, it just assumes that businesses are places of public accommodations if they are exclusively on the Internet providing they are doing what places of public accommodations listed in the Americans with Disabilities Act would be doing if they were in physical space.

All this said, it isn’t that complicated to have your website accessible to persons with disabilities (find someone familiar with Section 508 standards). It also makes good business sense.

Update: Many times, blogs will talk about the same cases. There is not a problem so long as a variety of perspectives are offered. This particular case came to me courtesy of the Seyfarth Shaw blog that is on my blogroll. It is Cullen v. Netflix, Inc. 2012 WL 2906245 (N.D. Cal. July 13, 2012). This particular case was identical on its facts to the Massachusetts case discussed above. The only difference being that it was a suit under the California Unruh’s Civil Rights Act and the California’s Disabled Person’s Act. In this case, the Northern District of California said that for the Americans with Disabilities Act to apply, a physical space must be involved. They did note the Massachusetts case above as well as the Seventh Circuit case, which as noted above had held, in dicta, that the ADA applies to electronic space. They also acknowledged The National Federation of the Blind case where a District Court in California said that the ADA applied where the Internet was a gateway to a brick-and-mortar store (no such gateway existed with Netflix). Also discussed in this case was whether the plaintiff had an independent cause of action under the California Unruh’s Civil Rights Act. That particular act is tied into the ADA. However, a separate cause of action independent of the ADA is allowable if intentional discrimination exists. However, the court found that no such intentional discrimination existed, and therefore, the claims under the California Unruh’s Civil Rights Act had to be dismissed.

In short, this question is undoubtedly headed to the United States Supreme Court. It would make sense for the plaintiff to appeal this case to the U.S. Court of Appeals for the Ninth Circuit for a couple of different reasons. First, if it doesn’t lead to a reversal (for example, an adoption of the reasoning in the Massachusetts case), it could lead to an affirmation that the Americans with Disabilities Act applies where the Internet is a gateway to a brick-and-mortar store. Second, since the National Federation of the Blind v. Target case is a U.S. District court case, the Ninth Circuit would have the opportunity to address that case directly. Third, if the Ninth Circuit ruled that the Americans with Disabilities Act applies to physical space only, perhaps also allowing for the gateway, that would set up a conflict with the Massachusetts case, assuming that case was affirmed by the First Circuit. Of course, the Massachusetts case could be appealed to the first circuit and it is possible that the first circuit might agree with the District Court decision in the California case. No doubt, be on the lookout for further developments.

What is a business to do? From a preventive law standpoint, it makes sense for the business to go about its business as if the Americans with Disabilities Act applied to the Internet. That also may be good business sense as it increases the customer base for the business. However, a business would be perfectly justified in taking the position that the Americans with Disabilities Act does not apply where the business is strictly on the Internet. Ultimately, this will probably be settled by the U.S. Supreme Court. If the personnel is the same by the time this case reaches the U.S. Supreme Court it is hard to say how the case would go. Previously, the swing vote in Americans with Disabilities Act cases with Justice O’Connor (compare Tennessee v. Lane with Board of Trustees of the University of Alabama v. Garrett). Before Justice Alito assumed his position on U.S. Supreme Court, his Americans with Disabilities Act cases were pretty much a literal interpretation of the Americans with Disabilities Act as applied to the facts. Of course, it is entirely possible that the composition of the court will have changed by the time this case gets there.

Stay tuned.

places of public accommodation

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