The Argument for Standalone Websites as a Place of Public Accommodation

Today’s blog entry is a case from the Eastern District of New York, Martinez v. Gutsy LLC, here, which makes the case for why standalone websites can be a place of public accommodation providing that site is functioning for one of the purposes laid out in 42 U.S.C. §12181(7).

 

Once again, a person using a screen reader could not access a website. In this case, a company sold probiotic soda through its website. Defendant filed a motion to dismiss, and it is that motion that the case considers. As usual, the blog entry is divided into two categories, and they are court’s reasoning that a Gutsy’s standalone website is a place of public accommodation  and thoughts/takeaways. Of course, the reader is free to focus on either category.

 

I

Court’s Reasoning That Gutsy’s Standalone Website Is a Place of Public Accommodation.

 

1. The United States Courts of Appeals are split on whether a standalone website is a place of public accommodation under the ADA.
2. The First Circuit and the Seventh Circuit have found that electronic space can itself be a place of public accommodation.
3. The Third Circuit, Sixth Circuit, Ninth Circuit, and 11^th Circuits have held that places of public accommodation are limited to physical spaces, but that goods and services provided by a public accommodation, including those provided through a website, could conceivably fall within the ADA’s protections if a sufficient nexus exists. The Second Circuit has yet to weigh in.
4. District courts within the Second Circuit are split on the issue of whether standalone websites are places of public accommodation under the ADA.
5. The vast majority of courts in the Second Circuit at the District Court level have taken the position that a standalone website is a place of public accommodation under the ADA independent of any nexus to a physical space.
6. That so many judges have diverged in their interpretation over this question means that the plain language of title III of the ADA is ambiguous as to whether standalone websites are covered entities under title III of the ADA. Accordingly, a court can use cannons and other interpretive tools to understand the statute in question. If after that, the text of the statute is not entirely clear, a court turns to broader statutory context and its history. When using this methodology, the courts are split as well.
7. The common thread running through the list contained in 42 U.S.C. §12181(7)(E), (F) are threads of common function, rather than one defined by physical presence. In other words, the statutory focus of §12181(7) is on the entity’s function, such as serving food, creating space for the public to gather, offering entertainment, providing education, offering banking or transportation services, etc. §7(E) is a list of entities engaged in commerce, while §7(F) must be one engaged in the provision of services. Therefore, the ADA provides a guiding limiting principle for courts to use, namely a function-based analysis in applying the ADA’s antidiscrimination requirements online.
8. Courts assessing ADA public accommodation discrimination claims need to first assess whether the entity with an Internet presence has a function like one on the non-exhaustive list of public accommodations in §12181(7).
9. Place of public accommodation is a term of art common to remedial civil rights statutes. In such statutes definitions have varied wildly, which serves to demonstrate how the term changes in order to deal with the harms such statutes are intended to remedy.
10. The phrase “place of public accommodation,” should be read within its context and related history. When reading it that way, a court cannot rule out that the definition sensibly includes electronic space as well as physical spaces.
11. The change in word choice from public accommodation to facilities when intending to discuss a physical space, further bolsters the interpretation of §12181 as concerned with the functions of the various entities rather than their physical spaces.
12. In March 2020, the near entirety of everyday American life moved online: grocery shopping moved entirely online just about; kids attended school online; white-collar workers were working remotely; and families went to the movies by streaming in their living room, etc. In short, the dramatic extent to which the Internet has changed what it means to participate in American society came front and center.
13. As vaccinations have become widespread and pandemic restrictions have loosened across the country, some Americans have returned to in person movie theaters, physical shopping centers, and lengthy commutes. However, many others have not done so.
14. If it was not already clear before 2020, it is clear today that an enormous share of activities of daily life now happen online.
15. Commerce is now transacted online as often as not: artisans sell on Etsy; Amazon has largely replaced the in-person convenience store; brick-and-mortar public facing locations can be and appended to core online business and not the other way around, and the Internet is replete with how to guides for creating your own E store and navigating the broader e-commerce landscape.
16. As an ever greater proportion of the activities of everyday life and commercial transactions take place online, a reading of the statute limiting its effect to enter the transacting commerce in person becomes one that render the statute increasingly meaningless.
17. A core maximum statutory interpretation, the presumption against absurdity, means that a court should never describe an absurd meeting to Congress. That is, a court must always presume congressional rationality in its drafting. As such, that also favors an interpretation of the ADA that includes standalone commercial websites within its coverage.
18. Per PGA Tour v. Martin, which we discussed here, the ADA must be broadly construed to effectuate its purpose of eliminating discrimination against individuals with disabilities.
19. Legislative history of the ADA also weighs in favor of a dynamic interpretation of the statute accounting for changes in technology over time. In fact, the House committee report published in the lead up to the bill’s passage specifically specified that the committee intended that the types of accommodation and services provided to individuals with disabilities under all titles of the ADA should keep pace with the rapidly changing technology of the times.
20. While no federal agency has promulgated regulations clearly defining public accommodations for purposes of the ADA in relation to the Internet, the DOJ has issued a guidance in that area. That guidance is entitled to deference per Supreme Court decisions because it is informed by DOJ’s specialized experience and consistent with the DOJ’s position in its recent cases and settlements.
21. DOJ has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
22. While not controlling, DOJ’s understanding of a public accommodation is any business open to the public and its specific position that the ADA’s requirements apply in the Internet context, further weighs in favor of interpreting title III to include standalone commercial website as places of public accommodations.
23. A nexus need not be found for a standalone website to be a place of public accommodation under title III of the ADA. Instead, the key is to focus on whether the websites operate in one or more of the functional categories that forth by the statute.

 

II

Thoughts/Takeaways

 

1. I read lots of these kinds of decisions. I am always mystified that South Dakota v. Wayfair, which we discussed here, never gets mentioned. I just don’t understand it. In fact, not mentioning it may even be legal malpractice because it is relevant United States Supreme Court authority very much suggesting that a standalone website can be a place of public accommodation.
2. Undoubtedly, the issue of whether standalone Internet sites are places of public accommodation is headed to the United States Supreme Court eventually.
3. This case does an excellent job of laying out the reasons why the ADA can be interpreted to include standalone websites within title III of the ADA providing those websites are serving a function within one of the categories listed in 42 U.S.C. §12181(7). As such, this case falls within the line of cases, such as here, saying that the Internet must be meaningful accessible to people with disabilities if what is going on, i.e. the function, falls within one of the categories listed in §12181(7).
4. The list of entities in §12181(7) is not exclusive even if the categories are.
5. Interesting how the court talks about the use of place of public accommodation v. facility and how that means place of public accommodations can include electronic space.
6. Can’t argue with the proposition that online drives everything nowadays. Also, remote work isn’t going away either. If online websites do not have to be meaningfully accessible to persons with disabilities despite whether their functions fall within one of the enumerated categories, people with disabilities will certainly be on the outside looking in.
7. Also interesting is that the opinion does not cite Kisor v. Wilkie, which we discussed here, but does cite the Supreme Court cases coming before that. From reading this decision, the court is clearly of the view that the DOJ guidance will pass muster per Kisor.
8. The 11^th Circuit is uncertain on the issue of standalone websites because Winn-Dixie was mooted. We discussed the very difficult to understand and now mooted 11^th Circuit decision and Winn-Dixie here.
9. 42 U.S.C. §12181(7)(E) is a category involving sales or rental establishments. Commerce, the term used by the court, is much broader than what the actual category is.
10. The case is making its way through trial and undoubtedly will head to the Second Circuit eventually.

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