On October 7, 2019, the Supreme Court denied the petition filed by Domino’s pizza to appeal the ruling from the 9th Circuit Court of Appeals finding that its website was subject to the requirements of the Americans with Disabilities Act (“ADA”). In so doing, the Supreme Court upheld the Federal Appeals court ruling that found that Title III of the ADA requires a website or mobile-phone application offering goods or services to consumers must satisfy accessibility requirements with respect to individuals with disabilities.
This case presents a clear example of the challenges to businesses that arise as a consequence of the law not keeping up with the pace of technological change. Although this decision now stands as settled law for states within the jurisdiction of the 9th Circuit, this issue has yet to be decided in Maryland and the District of Columbia. To make matters worse, although Federal Appeals Courts in the Third and Sixth Circuits issued similar rulings, the Court of Appeals in the First, Second and Seventh Circuits have in essence ruled just the opposite, that the ADA rules regarding accessibility only apply to brick and mortar institutions.
At the heart of the matter lies the question of what constitutes a place of public accommodation under the law. Title III of the ADA, 42 U.S.C. § 12181 et seq., provides, in relevant part:
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 who owns, leases (or leases to), or operates a place of public accommodation.
Section 301 of Title III, 42 U.S.C. § 12181, further provides that “[t]he following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce”:
(A) an inn, hotel, motel, or other place of lodging … ;
( B) a restaurant, bar, or other establishment serving food or drink;
( C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
( D) an auditorium, convention center, lecture hall, or other place of public gathering;
( E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
( F) a laundromat, dry cleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
( G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, under-graduate, or postgraduate private school, or other place of education;
( K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
( L) a gymnasium, health spa, bowling alley, golf course , or other place of exercise or recreation.
Given the breath of the definition of public accommodation, many businesses may be required to deal with this issue. In 2018 alone, there were over 2,250 federal lawsuits alleging ADA violations based on website inaccessibility.
It’s hard not to agree with critics that argue that interpreting the requirements of the ADA, created during a time when landlines and snail mail were the norm, unfairly burdens businesses. However, until either the Department of Justice steps forward and provides some regulatory guidance (an effort that was previously started and abandoned) or Congress provides some statutory clarifications, discretion is the better part of valor. Accordingly, businesses, non-profits and other entities engaging in what amounts to online commerce, may be well served by consulting with knowledgeable counsel and, until such time as the law is clarified, look at this issue as an opportunity to expand their customer base.
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