/>iWait — why is my favorite employment law blog detouring into the world of website accessibility? If your business has a website, keep reading.
If you read our blog regularly, you probably recall a few posts about website accessibility lawsuits and where the courts stand on whether a website is a “place of public accommodation.” These cases often land on an employment lawyer’s desk because they are brought under the Americans with Disabilities Act and employment lawyers regularly work with the ADA.
Just in time for Christmas, the chief judge in one of the leading courts on this issue, the Southern District of New York, recently issued an opinion that provides helpful insights on these cases and, specifically, whether a completely virtual business with no brick-and-mortar locations is a “place of public accommodation” covered by the ADA.
Background
Under Title III of the ADA , places of public accommodation must be equally accessible to those living with disabilities. The ADA does not define a “place of public accommodation,” but it lists a number of examples, ranging from restaurants, bars, and bakeries to healthcare providers, schools, and social service centers. These examples make clear that a business’s brick-and-mortar locations — where they do business with customers — are nearly always considered places of public accommodation. But what about a business’s website? If I sell things on my website, does that make it a place of public accommodation?
In recent years, courts have seen a substantial increase in the number of website accessibility suits. Generally, these suits claim that a person living with a disability (often a vision impairment) was unable to use a business’s website to purchase certain goods or learn about certain products, services, or other information. Thus, the plaintiff’s lawyer argues that the plaintiff and all similarly situated individuals were denied equal access to the goods and services of a business, i.e., a place of public accommodation.
Are Website-Only Businesses Places of Public Accommodation?
Whether a website is a place of public accommodation has been subject to much debate. One question in particular has been whether a business’s website is a place of public accommodation if the business has no brick-and-mortar business locations and operates only online. Courts have not agreed on this issue.
Because both New York State and New York City have laws that require equal access to places of public accommodation, many of these lawsuits are filed in the federal Southern District of New York, resulting in that court being one of the leading courts on website accessibility. Unfortunately, there has been a split amongst the judges in that court on whether the website of a business with no physical locations is a place of public accommodation. But recently the chief judge provided clarity.
The Chief Judge Chimes In
Like many website accessibility lawsuits, the plaintiff in this case has a visual impairment and alleged that a business’s website was not accessible with his screen reader. The business sold coffee products exclusively online and had no physical place of business open to the public. The business moved to dismiss the case, arguing that the ADA did not cover its virtual-only business because it was not a place of public accommodation.
The chief judge ultimately agreed and concluded that “a stand-alone website is not a place of public accommodation under Title III of the ADA.” After noting that there was a split amongst judges in the Southern District of New York over whether the website of an online-only business was a place of public accommodation, the court also pointed out that the majority rule in the federal courts of appeal requires a connection or “nexus” to a physical place of public accommodation. The court then looked to the ADA’s list of examples of places of public accommodation and determined that, “[b]y listing 50 terms… that almost all refer to physical places, Congress indicated an intent to limit public accommodations to entities with physical locations.” The court also reasoned that “a standalone website should not be considered a ‘place of public accommodation’” because the ADA’s list “does not explicitly address businesses without a physical location, such as mail order merchandise and television shopping channels, despite numerous applicable business models in existence at the time the statute was written.”
Takeaways
This opinion is not binding on any courts outside of the Southern District of New York, and it is not technically binding on the opinions of other judges in that district. However, the opinion, issued by the chief judge, is an attempt to move the Southern District of New York in the direction that websites of businesses without brick-and-mortar locations are not places of public accommodation. Time will tell as to how that plays out.
