POSTED BY ARLENE KLINE
ON SEPTEMBER 30, 2014
By now, most lawyers are aware that Title III of the ADA applies to activities of an
entity whose operations "affect commerce" and is a "place of public accommodation" as
defined by statute. 42 U.S.C. § 12181(7)(A)-(L). Commerce is defined
as "travel, trade, traffic, commerce, transportation, or communication (A) among the several
States; (B) between any foreign country or any territory or possession and any State; or (C)
between points in the same State but through another State or foreign country."
42 U.S.C. § 12181(1). But, are the websites of these "places of public accommodation"
subject to the requirements of Title III? Certainly, one could argue that websites
are the virtual cyberspace extensions of physical places, so why not? Plaintiffs'
attorneys certainly think so and are filing more and more lawsuits to make these electronic
showrooms accessible to persons with disabilities. However, the issue is not that settled.
In 2010, the Department of Justice ("DOJ") issued an advanced notice of proposed rulemaking
regarding the ADA's coverage of websites and solicited comment on the issue. Well,
it is now almost the end of 2014 and the DOJ has yet to issue formal regulations concerning
website access, although it has in the intervening years taken the position that websites
generally should be made accessible to individuals with disabilities. The DOJ has
engaged in a host of enforcement actions in Title II cases (cases that require that governmental
entities adhere to Rehabilitation Act standards) regarding the accessibility of websites. In
addition, the DOJ has entered into consent decrees with private entities concerning the accessibility
of their websites and electronic media, such as Hilton Worldwide in 2010 and H&R Block in
2014. And so, even absent formal regulations, the DOJ's enforcement history strongly
indicates its opinion that the ADA covers access to websites.
But in the courts, the coverage of websites under the ADA remains unsettled. For
example, the Ninth Circuit has held that a "place of public accommodation" must be a physical
place, or, at a minimum, involve a physical place. See Weyer v. Twentieth Century
Fox Film, Corp., 198 F.3d 1104, 1114-15 (9th Cir. 2000). The Weyer case continues to
be cited by California district courts for this proposition, even in cases involving access to
websites. The Ninth Circuit in February 2014 certified a question to the California
Supreme Court regarding whether its Disabled Persons Act includes websites as "places of public
accommodation." See Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network,
742 F.3d 871, 875 (9th Cir. 2014). The issue has yet to be resolved. Given the
continued controlling nature of Weyer's "physical place" pronouncement, decisions from other courts
within the Ninth Circuit have permitted plaintiffs to state a viable claim that the ADA covers a
website where the plaintiff alleges that the inaccessibility of a defendant's website prevents the
full and equal enjoyment of the goods and services contained within the defendant's physical
On the other hand, courts in other circuits, particularly the First and Eleventh,
have held specifically that the ADA applies to more than physical places. See Nat'l Ass'n
of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (Netflix's website for the
rental and viewing of movies, "may qualify as: a 'service establishment' in that it provides customers
with the ability to stream video programming through the internet; a 'place of exhibition or entertainment'
in that it displays movies, television programming, and other content; and a 'rental establishment'
in that it engages customers to pay for the rental of video programming.") (citing Carparts Distrib. Ctr.
v. Auto. Wholesaler's Assoc., 37 F.3d 12, 19 (1st Cir. 1994)); Rendon v. Valleycrest Productions , Ltd.,
294 F.3d 1279, 1283-84 (11th Cir. 2002) (holding accessibility requirements may extend to platforms beyond
physical places, such as a hotline to participate in a television game show).
It seems that until the issue goes before the Supreme Court of the United States (and/or until the DOJ
has finally spoken), it will remain unsettled. However, businesses should be aware of this
emerging issue and be proactive in making sure their websites are up to par in this climate of uncertainty.