Title III of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12181 et seq., prohibits businesses classified as “public accommodations” from discriminating against individuals with disabilities, and it may require them to make modifications to their facilities and services to allow reasonable access. The definition of “public accommodation” has been a matter of dispute for all 25 years of the law’s existence. Several recent court cases have addressed whether businesses that provide services exclusively via the internet may be considered “public accommodations” within the meaning of Title III. Federal courts have reached different conclusions, so the dispute is likely to continue.
“Public accommodation” is broadly defined by Title III to include hotels, restaurants, theaters, public meeting spaces, retail stores, service establishments, train and bus stations, museums, parks, and schools, to name but a few. 42 U.S.C. § 12181(7). A common Title III claim might involve the alleged inaccessibility of a business’ physical location, such as due to a lack of wheelchair ramps. What about businesses that provide all their services online, with no physical facilities for customers? Claims against this type of business have included claims that video-streaming services do not accommodate deaf customers, and that websites do not accommodate blind customers.
Whether a web-based business meets the definition of a “public accommodation” is still a matter of dispute in the federal court system. The Third Circuit Court of Appeals, which has jurisdiction over New Jersey, has ruled that Title III only applies to physical locations. Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3rd Cir. 1998). That case involved loss of access to insurance benefits, not services offered by a web-based company, but the decision could apply to that sort of business. The court based its ruling on the definition of “public accommodation” found in Title II of the Civil Rights Act of 1964, which is limited to “places.” Id., citing 42 U.S.C. § 2000a(a).
The First Circuit reached a different conclusion, finding that “public accommodations” under Title III are not limited to “actual physical structures.” Carparts Distrib. Ctr. v. Automotive Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994). The court noted that Title III’s definition of “public accommodation” includes a list of “service establishment[s],” such as a “travel service” and a “shoe repair service,” that do not require “physical structures for persons to enter.” Id., quoting 42 U.S.C. § 12181(7)(F).
District courts in the First Circuit have applied this holding to web-based businesses. In Nat’l Ass’n of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012), a court denied a motion to dismiss a Title III claim involving a lack of captioning in Netflix’s “Watch Instantly” video-streaming service. The court followed the Carparts decision and also ruled that the plaintiff had met the pleading requirements to show that the defendant “owns, leases…, or operates” a place of public accommodation. Id. at 202, quoting 42 U.S.C. § 12182(a). Another court reached a similar conclusion regarding access for the blind in Nat’l Federation of the Blind v. Scribd, No. 2:14-cv-00162, opinion (D. Vt., Mar. 19, 2015).
Business law attorney Samuel C. Berger represents businesses and business owners in the New York City and Northern New Jersey areas. Our fixed-fee packages of legal services cover a wide range of issues and allow our clients to understand their rights and duties and run their businesses successfully. Contact us today online or at (212) 380-8117 to schedule a confidential consultation with a knowledgeable and skilled business advisor.
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