Nexus, Doe, or 42 USC §12181(7): When Must an Internet Site be Accessible to Persons with Disabilities?

Originally published by William Goren.

 

Today’s blog entry comes from the Fourth Appellate District of the State of California. It is an Internet accessibility case. The difference with this case is that there is a focus on the California’s Civil Rights Act, what they call the Unruh Civil Rights Act. The facts are pretty straightforward. The plaintiff is permanently blind and requires screen reading software to vocalize visual information on the computer screen that allows him to read website content and access the Internet. Of course, the credit union’s site was not accessible. So, he sues under the Unruh Civil Rights Act alleging both intentional discrimination and a violation of the ADA. A violation of the ADA is an independent basis for liability under the Unruh Civil Rights Act. The matter went all the way up to the point where a jury trial was imminent. However, at the last minute the trial judge granted defendant’s motion for nonsuit and concluded that the website was not subject to the ADA as it was not a place of public accommodation. Plaintiff appealed. As usual, the blog entry is divided into categories and they are: court’s reasoning introductory matter; court’s reasoning discussing the various views on Internet accessibility; court’s reasoning adopting the nexus view; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning Introductory Matters

 

1. 42 U.S.C. §12182 provides that 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 owning, leasing, or operating a place of public accommodation.
2. In order to establish a violation of the ADA, a plaintiff has to show: 1) he has a disability; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; and 3) the plaintiff was denied public accommodations by the defendant because of the disability.
3. 42 U.S.C. §12181(7) defines a place of public accommodation by listing 12 different categories of covered places and establishments and giving nonexclusive examples of the types of enterprise falling into each category.
4. A website is not listed in any of the statutory categories. However, that isn’t surprising because no commercial websites existed when the ADA was enacted in 1990. However, in the 30 years since that time, websites are critical to American life and are widely used by both consumers and businesses to communicate information and conduct transactions. Websites are now essential tools in the conducting of daily affairs and have even become more so with the Covid-19 pandemic.
5. DOJ has previously endorsed the applicability of title III to websites but has not provided specific regulatory guidance.

 

II

Court’s Reasoning Discussing the Various Views on Internet Accessibility

 

1. Two main views exist with respect to when an Internet site must be accessible to persons with disabilities.
2. The minority view is that websites are public accommodations within the meaning of the ADA. That is the view of the First, Second, and Seventh Circuit.
3. Court’s adopting the minority view rely upon the service establishment category of the definition of a place of public accommodation and then extrapolate that Congress must have intended that a place of public accommodation would include providers of services that do not require a person to physically enter an actual physical structure.
4. Court’s adopting the minority view also emphasized the critical nature of website for transacting business in one’s daily life, and that Congress made clear that the ADA is supposed to adapt to changes in technology.
5. The majority view is that websites are not places of public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim that the denial has prevented or impeded a plaintiff with the disability from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This is the view you see in the Third, Sixth, Ninth, and 11^th
6. The majority view gets to that conclusion by looking at 42 U.S.C. §12181(7) and realizing that just about everything listed there is a physical place.
7. Neither the United States Supreme Court nor the California Supreme Court have ruled on which view should prevail.

 

III

Court’s Reasoning Adopting the Nexus View

 

1. The ADA applies to the services of a place of public accommodation and not to services in a place of public accommodation.
2. The ADA is a remedial statute and should be construed broadly to implement the fundamental purpose of eliminating discrimination against individuals with disabilities.
3. The nexus rule is supported by the ADA provision, 42 U.S.C. §12182(b)(2)(A)(iii) requiring an entity to provide auxiliary aids necessary to ensuring equal access for individuals with disabilities. The implementing regulations, 28 C.F.R. §36.303(a), on that point require a place of public accommodation to take those steps necessary to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services unless a fundamental alteration or undue burden is involved. There is also an effective communication rule as well, 28 C.F.R. §36.303(c)(1).
4. Both the provisions of 42 U.S.C. §12182 and 28 C.F.R. §36.303 strongly support the application of the nexus theory is a place of public accommodation is defined as a physical place.
5. While courts have not been consistent in defining the scope of the nexus requirement, most courts have interpreted the requirement broadly to conclude that a plaintiff has made the requisite showing if the facts show the website connects customer to the goods and services of the defendant’s physical place.
6. The nexus test presumes that Congress did not intend the ADA to apply directly to a website. Accordingly, the nexus test considers whether the alleged website deficiency impinges upon the plaintiff’s ability to have equal access to, and enjoyment of, the products and services offered at the physical location. So, application of this standard requires a court to focus on the connection between the website and the goods and services offered by the place of public accommodation.
7. Plaintiff alleges that the credit union’s website was formatted in a way that prevented him from using his screen reading software to allow him to read the website’s content. The result of that was he could not look for credit union locations, check out its services, or determine which location to visit. He also could not effectively browse for defendant’s locations, products, and services online. Finally, if the website were accessible, he could independently investigate its services, products, and find a location to visit by using the website as sighted individuals can do. All of these allegations sufficiently show the necessary nexus between the website and credit union’s physical locations.
8. Whether a particular facility is a place of public accommodation under the ADA, is a question of law.
9. The fact that many people with disabilities challenging inaccessible websites would be successful in showing the required nexus derives from the fact that websites often provide important tools to connect customers to a physical place. That is a primary reason for many websites. To deprive a person with a disability from accessing essential amenities is precisely the unfairness the ADA was enacted to prevent.
10. The primary jurisdiction defense doesn’t wash because everyone has known for years that the ADA must be complied with. Complying with the ADA carries with it a certain flexibility. Flexibility is a feature of the ADA and not a bug. Further, just because the DOJ has yet to issue specific regulations that does not bar the court from addressing those issues.
11. Plaintiff’s pleadings do not seek to impose liability based solely on the credit union’s failure to comply with WCAG 2.0 et. ff. Rather, plaintiff is seeking to impose liability on the credit union for failing to comply with the Unruh Civil Rights Act and the ADA.

 

IV

Thoughts/Takeaways

 

1. There are actually more than two views of how the Internet and the ADA work together. We have discussed all of that many times before. The views are: 1) the Internet is always a place of public accommodation; 2) the Internet is never a place of public accommodation; 3) the Internet is a place of public accommodation if a sufficient nexus exists; and 4) the Internet site is a place of public accommodation if what is going on at the Internet site is the type of activity covered by 42 U.S.C. §12181(7). The trend is very much in favor of the Internet site being a place of public accommodation if what is going on at that site is the type of activity covered by 42 U.S.C. §12181(7).
2. The DOJ in an amicus brief, which we discussed here, clearly signaled that it favors option #4.
3. The United States Supreme Court made it pretty clear in South Dakota v. Wayfair, discussed here, that it is likely to favor option #4. It is interesting that the Martinez court did not reference the United States Supreme Court decision in South Dakota v. Wayfair and even more interesting that the plaintiff’s attorneys apparently never brought it up.
4. It isn’t accurate to say that the Seventh Circuit has decided that the Internet site is always a place of public accommodation. True, Justice Posner said as much in Doe v. Mutual of Omaha Insurance Company. However, that frequently cited statement was dicta, i.e. not germane to the rest of the case.
5. The auxiliary aids and services rule and the equal access rule do not imply that a physical place must be involved. Let me give you an example from my personal world. Everybody is now using Zoom to some degree. As everyone knows, I am congenitally deaf with a 65 to 120 dB hearing loss in each ear. With advanced hearing aids and lip reading I am able to function in the hearing world. If the volume is loud enough I can get 80 to 90% of what is said without lip reading. So, my cochlears work fine; I just lost the volume, the severity of which depends upon the frequency. When I have to use Zoom, the only way I can come close to equally accessing Zoom compared to a hearing person is to dial in. That dial in number must be offered by Zoom. Believe it or not, Zoom is not offering a dial in number for those with a free account. In that situation, I have to hope that the person I am collaborating with has a landline or cell phone number I can dial into in addition to going online with Zoom. That is, Zoom needs to offer a dial in number as an auxiliary aid and service. Zoom is not a physical place. So, the court’s logic that the effective communication rules and the equal access rules mandate a physical place simply doesn’t hold up.
6. Absolutely true that the courts are all over the place with respect to what is a sufficient nexus. That in and of itself is a reason not to adopt the nexus test. It is much easier and simple to just figure out whether what is going on at the Internet site if it is the type of thing covered in 42 U.S.C. §12181(7) then it is to try and hit the moving target of whether a sufficient nexus exists.
7. We have seen before many times that courts are rejecting the primary jurisdiction doctrine, such as here. That is, just because the DOJ has not issued regulations does not mean that ADA title III suits cannot go forward.
8. Whether a particular facility is a place of public accommodation, is a question of law (for the judge to decide).
9. WCAG 2.0 is not a liability standard but rather a possible remedy. We are waiting for a decision from the 11^th Circuit as to what their view is on that.
10. Title III causation is on the basis of and not because of. However, that distinction may no longer be important in light of Bostock, discussed here.
11. Why not an ADA suit? Well, the Unruh Civil Rights Act allows for damages for ADA violations but title III of the ADA does not.
12. I don’t know if Richard Hunt is going to blog on this case, but it will not surprise me if he does. I previously sent the case his way. His view was that he just did not see where the auxiliary aids and services argument fits or why it was needed. The ADA already has a prohibition against discrimination in the provision of services and providing services only in an inaccessible way is directly discriminatory. I couldn’t agree with Richard more.

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