For the last several years, consumers have increasingly turned to online shopping as an alternative to traditional "brick and mortar" stores. Some reports showed that "Cyber Monday" sales figures beat out those for "Black Friday" this year, and many retailers are doubling down on their eCommerce efforts in response. What many retailers might not be aware of is the growing risk of litigation under the Americans with Disabilities Act (ADA) and derivative state laws arising from websites or mobile apps that allegedly discriminate against disabled individuals.
Although there has been more than a decade of litigation on this issue, basic questions have remained muddled, including whether Title III of the ADA (which requires access to places of public accommodations to disabled individuals) applies to websites. Recent developments in case law, new proposed regulations by the Department of Justice (DOJ) slated for March 2015, and a noteworthy recent DOJ settlement with an online grocery service, all indicate that this will be an area to watch in 2015.
Title III and Private Employer Websites
Although there is no consensus among courts, some recent cases have held that Title III applies to websites, while several earlier cases held that it did not.
Even courts that have held that a website is not a "public accommodation" under Title III have recognized that an exception exists where there is a "nexus" between the website and a physical place of public accommodation, such as a brick and mortar store. For example, in National Federation of the Blind v. Target Corporation, the plaintiffs filed a class action lawsuit against Target, alleging that its website was inaccessible to blind individuals.[1] Target argued that the website was not a place of public accommodation, and that plaintiffs had not alleged denial of access to the brick and mortar stores. The court rejected this argument, noting that "it is clear that the purpose of the statute is broader than mere physical access—seeking to bar actions or omissions which impair a disabled person's 'full enjoyment' of services or goods of a covered accommodation."[2] Target.com's retail offerings were held to have a sufficient nexus with its brick and mortar stores such that the plaintiff's claims survived a motion to dismiss.[3] Until recently, courts have generally held that Title III does not apply to web-only services (such as Facebook or YouTube) because they do not have a nexus with any physical location.[4] But in June 2012, the U.S. District Court for the District of Massachusetts held in National Ass'n of the Deaf v. Netflix, that Netflix's "Watch Instantly" website was a public accommodation subject to the ADA even though Netflix has no physical place of public accommodation.[5] The court concluded that "[t]he ADA covers the services 'of' a public accommodation, not services 'at' or 'in' a public accommodation".[6] The court found "Congress did not intend to limit the ADA to the specific examples listed in each category of public accommodations" and that the Netflix website may fit within at least one (if not more) of the categories listed in the ADA.[7]
In another case involving Netflix, in the U.S. District Court for the Northern District of California, Cullen v. Netflix, the court rejected the plaintiff's arguments, holding that it was bound by Ninth Circuit precedent requiring a nexus with an "an actual physical place" in order to trigger applicability of Title III.[8] Additionally, a recent decision from the Central District of California indicates that, even where a defendant has physical locations, a "nexus" is not automatically created. In Jancik v. Redbox Automated Retail, the court said that there was not a nexus between Redbox retail kiosks and the "Redbox Instant" website, holding that the "mere fact that the services are sold together does not mean that they are 'heavily integrated' or that one is a 'gateway' to the other."[9]
DOJ Set to Unveil Long-Awaited Regulations
Unlike Title II of the ADA, which applies to government entities, and provides detailed guidance as to what websites must do to comply with the ADA,[10] there are currently no such regulations under Title III.
To provide clarity in this area, the DOJ plans to issues new regulations applicable to websites of private companies in March 2015. These regulations were originally planned to be released earlier—in fact, the DOJ has postponed...
