Applying the Americans with Disabilities Act to Private Websites after National Federation of the Blind v. Target

Washington Journal of Law, Technology & Arts Washington Journal of Law, Technology & Arts

Volume 4 Issue 3 Article 6

2-25-2008

Applying the Americans with Disabilities Act to Private Websites Applying the Americans with Disabilities Act to Private Websites

after after

National Federation of the Blind v. Target National Federation of the Blind v. Target

Jeffrey Bashaw

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Recommended Citation Recommended Citation

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Applying the Americans with Disabilities Act to Private Websites after National

Federation of the Blind v. Target

, 4 SHIDLER J. L. COM. & TECH. 10 (2008).

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Cite as: Jeffrey Bashaw, Applying the Americans with Disabilities Act to

Private Websites after National Federation of the Blind v. Target, 4 Shidler

J. L. Com. & Tech. 10 (2/25/2008), at

<http://www.lctjournal.washington.edu/Vol4/a10Bashaw.html>

APPLYING THE AMERICANS WITH DISABILITIES ACT TO

PRIVATE WEBSITES AFTER NATIONAL FEDERATION OF THE

BLIND V. TARGET

Jeffrey Bashaw

©Jeffrey Bashaw

Abstract

The United States District Court for the Northern District of

California recently held that websites which are tightly integrated

with a physical store must be accessible to the blind, or risk

running afoul of the Americans with Disabilities Act (“ADA”). The

court in this case, National Federation of the Blind v. Target

(“Target”), declined to grant summary judgment for Target, a

retailer which operates both physical stores and an e-commerce

website, in a suit alleging that Target’s website, Target.com, was

discriminating against the blind. This Article will describe the

narrow application of Target, which found that websites which

are tightly integrated with a physical store must be accessible to

the blind to comply with the ADA. This Article also discusses the

uncertainties this case leaves unanswered, such as at what point

a business’ web presence becomes subject to this ruling and is

required to be accessible to the blind. Finally, this Article will

explore arguments about how the ADA may apply to pure e-

commerce sites as well.

Table of Contents

Introduction

The Americans with Disabilities Act

National Federation of the Blind v. Target: A Nexus Test

Application of the ADA to Pure E-Commerce sites

Similar Cases Which Have Settled

Legislative History and Purpose of the ADA

The Department of Justice's Interpretation of the Applicability of

the ADA to the Internet

"Place" Under the ADA

The Circuit Split

Conclusion

INTRODUCTION

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<1>A class of blind plaintiffs recently sued Target, alleging that

Target.com does not meet the minimum standard of web

accessibility for the blind because it lacks alt-text, requires the use

of a mouse to complete a transaction, and contains other graphical

features which prevent blind users from navigating and making full

use of all of the functions of Target.com.

In this case, National

Federation of the Blind v. Target (“Target”),

the United States

District Court for the Northern District of California found that

websites that are tightly integrated with a physical store must be

accessible to the blind or risk running afoul of the Americans with

Disabilities Act (“ADA”).

Target moved to dismiss the complaint,

arguing that Title III of the ADA only applies to physical places.

<2>The court denied Target’s motion to dismiss,

finding that

Target.com may be so tightly integrated with physical Target stores

as to constitute an interference with blind individuals’ ability to fully

enjoy the physical stores.

This Article will describe the narrow

ruling of Target and what that ruling means for businesses which are

clearly subject to that ruling. This Article will also explore arguments

about how the ADA applies to pure e-commerce sites.

THE AMERICANS WITH DISABILITIES ACT

<3>The ADA provides that “public accommodations”

may not

discriminate against people with disabilities. Specifically, it directs

that “[n]o 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….”

There are “two alternative conceptual

frameworks under which a … Website is subject to Title III: (a) as a

place of ‘public accommodation’ in its own right, and/or (b) as one of

the ‘goods, services, facilities, privileges, advantages, or

accommodations of’ a place of public accommodation.”

In Target,

the court found that websites are only subject to the ADA to the

extent that they offer “goods, services, facilities, privileges,

advantages, or accommodations of” a place of public accommodation,

expressly finding that websites are never, in their own right, places

of “public accommodation.”

However, as discussed later in this

Article, there are compelling arguments that commercial websites

are themselves places of public accommodation subject to the

ADA.

NATIONAL FEDERATION OF THE BLIND V. TARGET: A NEXUS TEST

<4>In Target, a class of blind plaintiffs sued Target, alleging that

Target.com does not meet the minimum standard of web

accessibility for the blind because, among other things, the site lacks

alt-text, requires the use of a mouse to complete a transaction, and

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contains other features which prevent blind users from navigating

and making full use of all of the functions of Target.com, which is

tightly integrated with physical Target stores.

Target moved for

the case to be dismissed for failure to state a claim.

The court

denied Target’s motion, finding that websites may be so tightly

integrated with physical stores as to constitute a good or service of

that public accommodation, and thus must be accessible to the blind

under the ADA.

<5>

Prior to Target, those courts that have addressed the applicability

of the ADA to the Internet have been split. Some courts interpret

the ADA to require only that websites that have a “nexus” with a

physical store must comply with the ADA

while others have found

explicitly that the ADA does not apply to non-physical “places.”

Another position taken by courts is that the ADA is applicable

because “public accommodations” need not be physical places,

with one court stating expressly that websites are themselves “public

accommodations.”

Target is an example of a “nexus” case.

<6>In Target, the court found that Target.com was a “service” of a

“place of public accommodation,” namely Target brick-and-mortar

stores, and as such was required to comply with the ADA.

However, the court limited application of the ADA to Target.com

solely to the extent that Target.com “is heavily integrated with the

brick-and-mortar stores and operates in many ways as a gateway to

the stores.”

In so doing, the court adopted a nexus test for

applicability of the ADA to websites.

<7>The court began its analysis by quickly rejecting Target’s

argument that a claim under the ADA is not cognizable if it occurs

away from a place of public accommodation. The court emphasized

that the plain language of the ADA “applies to the services of a place

of accommodation, not services in a place of public

accommodation.”

The court also quickly rejected Target’s

argument that “in order for plaintiffs’ claim to be actionable under

the ADA, the ‘off-site’ discrimination must still deny physical access

to Target's brick-and-mortar stores.”

Thus, the court held that a

claim under the ADA need not allege a denial of physical access to

brick-and-mortar stores.

<8>

The court next discussed the applicability of the ADA to websites

specifically, finding that websites by themselves are never “public

accommodations,” because “[u]nder Ninth Circuit law, a ‘place of

public accommodation,’ within the meaning of Title III, is a physical

place.”

As such, in order to state a claim for “unequal access to a

‘service’ of a place of public accommodation,” a plaintiff must allege

that a nexus exists between the service and the place of public

accommodation.

<9>

The court’s nexus test was previously developed in a series of

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similar cases. In Rendon v. Valley Crest Prods., Ltd., the court found

that the defendant denied disabled persons equal enjoyment of a

privilege (competing on the show “Who wants to be a Millionaire?”)

of a place of public accommodation (the studio where the show was

produced) by using a contestant screening process that discriminated

against people with hearing and other disabilities.

In Ford v.

Schering-Plough Corp., the court held that the plaintiff failed to state

a cause of action under the ADA by failing to allege a nexus between

the place of public accommodation (an actual insurance office) and

the insurance benefits offered by the employer.

Stoutenborough v. National Football League, the court dismissed a

Title III claim because the challenged service (the live telecast of a

football game) was not offered by a place of public accommodation

(the stadium).

Finally, in Access Now, Inc. v. Southwest Airlines

Co., the court held that the plaintiff failed to state a Title III claim

by alleging that the inaccessibility of Southwest.com prevented

access to Southwest’s “virtual” ticket counters, rather than a physical

place of public accommodation.

Based on these cases, the court in

Target concluded that the only way in which a private website may

be subject to the ADA is if it is a “service” of a “place of public

accommodation.”

<10>

The court in Target concluded that the plaintiffs had in fact

alleged the requisite nexus between a public accommodation (the

physical Target stores) and the “service” of that public

accommodation (Target.com).

The plaintiffs argued that “unequal

access to Target.com denies the blind the full enjoyment of the

goods and services offered at Target stores, which are places of

public accommodation.”

In demonstrating that Target.com is a

service of Target stores, plaintiffs alleged numerous ways in which

Target.com is an extension of Target stores, noting that the online

store allows customers “to browse products, product descriptions and

prices; view sale items and discounts for online shopping; print

coupons for use in Target retail stores; purchase items for home

delivery; order pharmacy items and have prescriptions filled for

pickup at Target retail stores; find retail stores” and a variety of

other services.

In note four, the court concludes from its own

review of Target.com that “Target treats Target.com as an extension

of its stores, as part of its overall integrated merchandising

efforts.”

Thus, the court found the requisite nexus between a

public accommodation (Target brick-and-mortar stores) and a

service it offers (Target.com) to hold that the service must comply

with the ADA.

<11>However, in keeping with its nexus theory, the court did grant

Target’s motion to dismiss “[t]o the extent that Target.com offers

information and services unconnected to Target stores, which do not

affect the enjoyment of goods and services offered in Target

stores.”

Thus, the case will proceed “only insofar as the complaint

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alleges a nexus between the Website and the physical stores.”

<12>

This ruling represents a significant step in the movement to

apply the ADA to private websites. Similar lawsuits have previously

settled,

while only one court flatly held that the ADA does not

apply to websites,

and the circuits are otherwise split on the

question of whether public accommodations must be physical places,

as discussed in the following section.

<13>At least for now, this is the clearest case which extends liability

under the ADA to the Internet. Based on this ruling, businesses that

operate websites that are heavily integrated with their physical

stores clearly must maintain such websites in a manner that provides

accessibility to the blind. However, this case leaves certain questions

unanswered, such as at what point a website becomes a “service” of

the place of public accommodation, or at what point a physical

presence (such as a drop-off point for shipping or repair) becomes a

“place of public accommodation.” In short, the applicability of this

case to other businesses likely depends on whether the physical

business, standing alone, would constitute a “place of public

accommodation.” Thus, an online retailer with a limited physical

presence (such as drop-off locations) is unlikely to be subject to the

ruling in Target, since the website is not likely to be classified as a

“service” of a place of public accommodation. Another question that

remains unanswered after this case is the effect of linking, cross-

marketing, or catalog merging arrangements. For instance, this case

does not resolve the issue of whether a company like Amazon, which

itself has no physical presence but does link to and list products for

sites that do have physical presences, such as Target, must be ADA

compliant.

APPLICATION OF THE ADA TO PURE E-COMMERCE SITES

<14>Although the court in Target expressly found that websites are

not themselves public accommodations,

strong arguments have

been made that websites can be, in themselves, public

accommodations under the ADA.

Similar Cases Which Have Settled

<15>There have been cases factually similar to Target, but these

have settled. The Attorney General of New York sued

Priceline.com

and Ramada.com

on the basis of inaccessibility to

blind individuals. Both cases settled, with part of the settlement

being that the websites would be made accessible. Under the

reasoning of Target, Priceline.com, as a pure e-commerce site, would

have been exempt from the ADA. However, the Attorney General of

New York thought that Priceline.com was under the purview of the

ADA, and Priceline.com, in settling, may have indicated that it

thought that there was at least some chance that a judge would

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agree. Additionally, in 1999 the National Federation of the Blind sued

America Online (“AOL”), alleging that AOL’s web services were a

public accommodation regulated by the ADA, and as such AOL was

obligated to make its services accessible to the blind. This case also

settled, again with part of the settlement agreement requiring AOL

to make its services accessible to the blind.

<16>

These cases should demonstrate to even web-only businesses

that compliance with the ADA is a recommended practice, as it

avoids the negative publicity of similar lawsuits, the costs of

defending and settling such lawsuits, and also the possibility of a

court extending the ADA to pure e-commerce websites.

Legislative History and Purpose of the ADA

<17>Another factor to consider in analyzing the applicability of the

ADA to the Internet is the timing of the statute’s promulgation. The

drafters likely did not contemplate widespread use of the Internet at

the time of the statute’s passing. The ADA was passed in 1990, and

while the Internet was invented in 1989, it did not come into

widespread use until 1995.

In analyzing this factor, the Supreme

Court has noted that “[w]hen technological change has rendered its

literal terms ambiguous, [an] Act must be construed in light of [its]

basic purpose.”

Because Congress likely did not contemplate the

current state of the Internet, the term “public accommodation” may

have become ambiguous. As such, the Supreme Court’s mandate

should be followed and the Act should be construed in light of its

basic purpose. Some of the general purposes of the Act are “to

provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities,” and

“to invoke the sweep of congressional authority…in order to address

the major areas of discrimination faced day-to-day by people with

disabilities.”

The express purpose of Title III of the ADA was “to

bring individuals with disabilities into the economic and social

mainstream of American life.”

Since, at this point in history,

“mainstream America uses the Internet for both economic and

recreational purposes, the above goal of Title III cannot be met

without ensuring access to the Internet for all Americans.”

This

argument finds additional support in the fact that the Supreme Court

has stated that the definition of public accommodation “should be

construed liberally.”

The Department of Justice’s Interpretation of the Applicability of the ADA to the

Internet

<18>The Department of Justice (“DOJ”), the agency given the

authority to issue regulations for Title III of the ADA, as well as to

provide technical assistance and enforcement of the ADA,

has

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taken the position that the ADA applies to the Internet.

For

instance, the DOJ filed an Amicus Curiae brief in Hooks v. OKBridge,

Inc.,

arguing that the definition of “public accommodation”

includes entities that operate solely on the Internet.

“Place” Under the ADA

<19>Finally, any analysis of the ADA must include an analysis of its

plain text. The ADA uses three different terms to describe “public

accommodations:” “places,” “establishments,” and “stations used for

specified public transportation.”

In addition, the ADA does not

define the term “place.”

Moreover, the list of different public

accommodations frequently ends with the phrase “or other place of.

…”

Thus, the list is merely descriptive, not definitive. Although

some courts have claimed that the examples listed in the statute are

physical, and thus the statute excludes the non-physical,

this

notion has been flatly rejected by other courts and commentators,

leaving open the possibility that a court will find that a pure e-

commerce presence must be accessible under the ADA.

The Circuit Split

<20>There is a split among federal circuit courts on the issue of

whether public accommodations must be physical places or whether,

instead, a website may in and of itself be a public

accommodation.

Cases finding that public accommodations are not

limited to physical places base their conclusions on the plain

language of the statute and secondarily rely on underlying policy

concerns and agency regulations. These cases include Carparts

Distrib. Ctr. v. Automotive Wholesaler’s Ass’n

(finding that AIDS

victims’ health care plans are “public accommodations”) and Doe v.

Mutual of Omaha Ins. Co.

(stating that websites specifically are

public accommodations as defined by the ADA).

<21>Those courts which find that public accommodations must be

physical places also tend to focus on the plain language of the ADA

and find the term “public accommodation” to unambiguously refer

solely to physical places. Parker v. Metropolitan Life Ins. Co.

used

the canon noscitur a sociis, which directs that terms be interpreted

within the context of accompanying words.

Weyer v. Twentieth

Century Fox Film Corp. also applied that doctrine in its interpretation

of “place,” and also found that a place of public accommodation

must be a physical place.

<22>

In Ford v. Schering-Plough Corp., the court found that “[t]he

plain meaning of Title III is that a public accommodation is a

place….[i]n keeping with the host of examples of public

accommodations provided by the ADA, all of which refer to

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places.”

Citing the examples from § 12181(7), and applying the

interpretive canons discussed above, the court stated that it did “not

find the term ‘public accommodation’ or the terms in

42 U.S.C. §

12181(7) to refer to non-physical access or even to be ambiguous

as to their meaning.

The court in Access Now, Inc. v. Southwest

Airlines, Co. also applied the interpretive canons discussed above

and held that, “to fall within the scope of the ADA as presently

drafted, a public accommodation must be a physical, concrete

structure” and that “the plain and unambiguous language of the

statute and relevant regulations does not include Internet websites

among the definitions of ‘places of public accommodation.’”

The

court then went on to find that plaintiffs had not established a nexus

between Southwest.com and a physical, concrete place of public

accommodation.

Similarly, the court in Hooks v. OKBridge held

that a physical facility is a necessary attribute of a public

accommodation.

CONCLUSION

<23>The Target decision is a significant development in the law

applying the ADA to the Internet. The decision holds that websites

are never public accommodations, and thus in order to be subject to

the ADA, must be a “service” of a “public accommodation.” Although

this court held that pure e-commerce websites and websites which

are not tightly integrated with a physical store are not subject to the

ADA, businesses which operate these types of websites are wise to

bring them into compliance anyway.

Not only is this a sound

business practice (opening the doors to the millions of blind

individuals who are potential customers and avoiding negative

publicity), but, in light of the lawsuits which have been brought but

have settled, and the current circuit split on the issue, it also

functions as a preemptive solution to subsequent cases which may

hold that websites themselves are public accommodations or new

legislation which would expressly require commercial websites to be

accessible to the blind.

<< Top

Footnotes

1. Jeffrey Bashaw, University of Washington School of Law,

Class of 2008. Thank you to Professor Anita Ramasastry

of the University of Washington School of Law and Jared

Barrett.

2. Disability Rights Advocates, Legal Precedent Set for Web

Accessibility (2006),

http://www.dralegal.org/cases/private_business/nfb_v_target.php.

For another description of the way Target.com interacts

with Target stores, see Amended Complaint at 6,

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National Federation of the Blind v. Target, 452 F.Supp.2d

946 (N.D. Cal. 2006), available at

http://www.dralegal.org/downloads/cases/target/nfb_v_target_complaint.pdf

(Target.com allows customers to “browse products,

product descriptions and prices; view sale items and

discounts for online shopping; print coupons for use in

Target retail stores; purchase items for home delivery;

order pharmacy items and have prescriptions filled for

pickup at Target retail stores” and a variety of other

services).

3. National Federation of the Blind v. Target, 452 F. Supp.

2d 946 (N.D. Cal. 2006).

4. 42 U.S.C. §§ 12101-12213 (2000).

5. A Fed. R. Civ. P. 12(b)(6) motion to dismiss tests the

sufficiency of a claim. “Dismissal can be based on the

lack of a cognizable legal theory or the absence of

sufficient facts alleged under a cognizable legal theory.”

Target, 452 F. Supp. 2d at 950.

6. Target, 452 F. Supp. 2d at 956. See also Eric Goldman,

Must Websites Comply with the ADA (and State-Law

Equivalents)? National Federation of the Blind v. Target,

Oct. 9, 2006,

http://blog.ericgoldman.org/archives/2006/10/must_websites_c.htm

; Target, 452 F. Supp. 2d at 956.

7. “Public accommodations” are defined at 42 U.S.C. §

12181(7) as an entity that affects commerce and falls

within one of the twelve enumerated categories: “The

following private entities…if the operations of such

entities affect commerce--

A. an inn, hotel, motel, or other place of

lodging, except for an establishment located

within a building that contains not more than

five rooms for rent or hire and that is

actually occupied by the proprietor of such

establishment as the residence of such

proprietor;

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,

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hardware store, shopping center, or other

sales or rental establishment;

F. a laundromat, dry-cleaner, bank, barber

shop, 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,

undergraduate, 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.”

8. 42 U.S.C. § 12182(a).

9. C

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH DISABILITIES,

SSOCIATION OF THE BAR OF THE CITY OF NEW YORK, WEBSITE

ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 8-9 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

10. Target, 452 F. Supp. 2d at 956.

11. See, e.g., Jeffrey Scott Ranen, note, Was Blind But Now

I See: The Argument for ADA Applicability to the

Internet, 22 B.C. Third World L.J. 389, 407 (2002) (an

extensive treatment of the argument for applicability of

the ADA to the Internet); Jonathan Bick, Americans With

Disabilities Act and the Internet, 10 Alb. L. J. Sci. &

Tech. 205, 213 (2000) (another extensive analysis of the

applicability of the ADA to the Internet) ; C

OMMITTEE ON

LEGAL ISSUES AFFECTING PEOPLE WITH DISABILITIES, ASSOCIATION OF

THE

BAR OF THE CITY OF NEW YORK, WEBSITE ACCESSIBILITY FOR

PEOPLE WITH DISABILITIES 23 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

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(arguing that a website is a place of public

accommodation); Brief of the United States as Amicus

Curiae Supporting Appellant, Hooks v. OKBridge, Inc.,

232 F.3d 208 (5th Cir. 2000), available at

http://www.usdoj.gov/crt/briefs/hooks.htm (arguing that

the court did not need to determine “whether a web site

on the internet can be a ‘place’ within the meaning of

the statute, for [defendant] OKBridge has a physical

facility in San Diego, California, where it houses its

computers and personnel. The bridge tournaments it runs

on its computers are ‘services’…of that place”); Letter

from Deval L. Patrick, Assistant Attorney Gen., Civil

Rights Div., to Sen. Tom Harkin (Sept. 9, 1996),

available at

http://www.usdoj.gov/crt/foia/tal712.txt;

Adam M. Schloss, note, Web-Sight for Visually-Disabled

People: Does Title III of the Americans with Disabilities

Act Apply to Internet Websites?, 35 Colum. J.L. & Soc.

Probs. 35 (2001); National Council on Disability, When

the Americans with Disabilities Act Goes Online:

Application of the ADA to the Internet and the Worldwide

Web, available at

http://www.ncd.gov/newsroom/publications/2003/adainternet.htm

12. Target, 452 F. Supp. 2d at 949-50. See also Disability

Rights Advocates, Legal Precedent Set for Web

Accessibility (2006),

http://www.dralegal.org/cases/private_business/nfb_v_target.php.

To see the plaintiffs’ description of the way Target.com

interacts with Target stores, see Amended Complaint at

4-5, National Federation of the Blind v. Target, 452

F.Supp.2d 946 (N.D. Cal. 2006), available at

http://www.dralegal.org/downloads/cases/target/nfb_v_target_complaint.pdf

(Target.com allows customers to “browse products,

product descriptions and prices; view sale items and

discounts for online shopping; print coupons for use in

Target retail stores; purchase items for home delivery;

order pharmacy items and have prescriptions filled for

pickup at Target retail stores” and a variety of other

services).

13. Target Corporation’s Answer to Amended Complaint,

2006 WL 3267474 (Sep. 20 2006).

14. Target, 452 F. Supp. 2d at 956.

15. See, e.g., Target, 452 F. Supp. 2d 946 (holding that the

plaintiffs stated a claim under the ADA only to the extent

that they alleged that the website is tightly integrated

with the physical stores); Ford v. Schering-Plough Corp.,

145 F.3d 601, 612-13 (3d Cir. 1998) (holding that the

plaintiff failed to state a cause of action under the ADA

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by failing to allege a nexus between the place of public

accommodation and the insurance benefits offered by the

employer); Access Now, Inc. v. Southwest Airlines Co.,

227 F. Supp. 2d 1312 (S.D. Fla. 2002) (holding that the

plaintiff failed to state a Title III claim by alleging that

the inaccessibility of Southwest.com prevented access to

Southwest’s “virtual” ticket counters, rather than a

physical place of public accommodation); Stoutenborough

v. Nat’l Football League, 59 F.3d 580, 583-84 (6th Cir.

1995) (dismissing a Title III claim because the

challenged service (the live telecast of a football game)

was not offered by a place of public accommodation (the

stadium)).

16. See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006

(6th Cir. 1997); Weyer v. Twentieth Century Fox Film

Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

17. Carparts Distrib. Ctr. v. Automotive Wholesaler’s Ass’n,

37 F.3d 12, 19 (1st Cir. 1994).

18. Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559

(7th Cir. 1999).

19. Target, 452 F. Supp. 2d at 955 (“the challenged service

here is heavily integrated with the brick-and-mortar

stores and operates in many ways as a gateway to the

stores”).

20. Target, 452 F. Supp. 2d at 955.

21. Target, 452 F. Supp. 2d at 953.

22. Id.

23. Id.

24. Id. (citing Weyer v. Twentieth Century Fox Film Corp.,

198 F.3d 1104, 1114-15 (9th Cir. 2000), which

concluded that places of public accommodation are

“actual physical place[s],” and specifically held that “an

insurance company administering an employer-provided

disability policy is not a “place of public accommodation

under Title III.”

25. Target, 452 F. Supp. 2d at 952-53.

26. Rendon v. Valley Crest Prods., Ltd., 294 F.3d 1279,

1280-81 (11th Cir. 2002). See also Target, 452 F. Supp.

2d at 953-54.

27. Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d

Cir. 1998) (“The plain meaning of Title III is that a public

accommodation is a place…Since [plaintiff] Ford received

her disability benefits via her employment at Schering,

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she had no nexus to MetLife's ‘insurance office’ [the

“place of public accommodation”] and thus was not

discriminated against in connection with a public

accommodation). See also Target, 452 F. Supp. 2d at

953-54.

28. Stoutenborough v. National Football League, 59 F.3d

580, 583-84 (6th Cir. 1995). See also Target, 452 F.

Supp. 2d at 953-54.

29. Access Now, Inc. v. Southwest Airlines Co., 227 F. Supp.

2d 1312 (S.D. Fla. 2002). See also Target, 452 F. Supp.

2d at 954.

30. Target, 452 F. Supp. 2d at 952, 955-56.

31. Target, 452 F. Supp. 2d at 952, 955-56.

32. Target, 452 F. Supp. 2d at 952.

33. Amended Complaint at 5, Target, 452 F.Supp.2d 946,

available at

http://www.dralegal.org/downloads/cases/target/nfb_v_target_complaint.pdf

34. See also Target, 452 F. Supp. 2d at 956, note 4.

35. See also id. at 956.

36. C

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH DISABILITIES,

SSOCIATION OF THE BAR OF THE CITY OF NEW YORK, WEBSITE

ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 23 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

37. See Evgenia Fkiaras, Liability Under the Americans with

Disabilities Act for Private Web Site Operators, 2 S

HIDLER

J. L. COM. & TECH. 6, ¶ 1 (2005), available at

http://www.lctjournal.washington.edu/Vol2/a006Fkiaras.html

38. See Target, 452 F. Supp. 2d at 954 (citing Access Now

v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla.

2002), which held that “plaintiff failed to state a claim

under the ADA because plaintiff alleged that the

inaccessibility of southwest.com prevented access to

Southwest’s ‘virtual’ ticket counters” because “‘virtual’

ticket counters are not actual, physical places, and

therefore are not places of public accommodation”).

39. See also Target, 452 F. Supp. 2d at 956.

40. See Fkiaras, supra note 37.

41. See id.

42. Id.

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43. COMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH DISABILITIES,

SSOCIATION OF THE BAR OF THE CITY OF NEW YORK, WEBSITE

ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 2 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

44. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,

156 (1975). See also Fortnightly Corp. v. United Artists,

392 U.S. 390, 395-96 (1968) (“[O]ur inquiry cannot be

limited to ordinary meaning and legislative history, for

this is a statute that was drafted long before the

development of the electronic phenomena with which we

deal here. In 1909 radio itself was in its infancy, and

television had not been invented. We must read the

statutory language of 60 years ago in the light of drastic

technological change”). For a thorough analysis of the

legislative history of the ADA, see C

OMMITTEE ON LEGAL

ISSUES AFFECTING PEOPLE WITH DISABILITIES, ASSOCIATION OF THE BAR

THE CITY OF NEW YORK, WEBSITE ACCESSIBILITY FOR PEOPLE WITH

DISABILITIES 16-20 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

45. 42 U.S.C. § 12101(b) (emphasis added): It is the

purpose of this Act--

1. to provide a clear and comprehensive

national mandate for the elimination of

discrimination against individuals with

disabilities;

2. to provide clear, strong, consistent,

enforceable standards addressing

discrimination against individuals with

disabilities;

3. to ensure that the Federal Government plays

a central role in enforcing the standards

established in this Act on behalf of individuals

with disabilities; and

4. to invoke the sweep of congressional

authority, including the power to enforce the

fourteenth amendment and to regulate

commerce, in order to address the major

areas of discrimination faced day-to-day by

people with disabilities.

46. Jeffrey Scott Ranen, note, Was Blind But Now I See: The

Argument for ADA Applicability to the Internet, 22 B.C.

Third World L.J. 389, 407 (2002). See also Jonathan

Bick, Americans With Disabilities Act and the Internet, 10

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Alb. L. J. Sci. & Tech. 205, 213 (2000) (“The underlying

objective of the ADA was to ensure the equality of

opportunity, full participation, and self-sufficiency

necessary to allow people with disabilities to compete for

society’s goods and services on an equal basis”).

47. Ranen, supra note 46, at 407.

48. PGA Tour, Inc. v. Martin, 532 U.S. 661, 676 (2001). See

also Fkiaras, supra note 37; Ranen, supra note 46, at

391-92, 395-96 (“A broad reading of the public

accommodations clause in Title III of the ADA suggests

that public accommodations are not limited to strictly

physical structures; therefore, nonphysical entities like

the Internet also fall within the statute’s purview. This

interpretation of Title III, in conjunction with supporting

case law and the statute’s legislative history, implies that

a broad reading of the ADA and its applicability to the

Internet is appropriate”); Bick, supra note 46, at 208

(“the public accommodations requirements cover almost

all facets of American life in which members of the public

come into contact with a business or other entity”).

49. 42 U.S.C. § 12188(b). The ADA gives the Attorney

General the authority to issue regulations and provide

technical assistance and enforcement of the ADA. The

Attorney General heads the Department of Justice. See

also Bick, supra note 46 at 208, n. 9.

50. See C

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH

DISABILITIES, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,

EBSITE ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 10-12

(2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

, (finding that “a Website is a ‘facility,’ as defined by the

DOJ regulations promulgated at the direction of the ADA.

A ‘facility’ includes ‘all or any portion of…sites,…

equipment,…or other…personal property…’ of the public

accommodation. Under this definition, a Website clearly

has a ‘site’—a physical location on ‘equipment’ such as a

server. People enter this ‘site’ using remote computers,

accessing ‘goods, services, facilities, privileges,

advantages, or accommodations’ resident on that site or

in another remote place in the same way people make a

telephone call to a bricks-and-mortar store to place an

order or walk into a library to read a book. Although the

cyberspace ‘place’ of public accommodation may be

smaller than a bricks-and-mortar counterpart (be it a

huge department store or a small storefront), it is

nonetheless a place. In this place, as in a walk-in place,

people may view, evaluate, buy and sell, order, and

even perform and deliver goods and services; enjoy a

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wide variety of entertainment and exhibitions; borrow

books, exhibit art and museum collections; pursue

games and other recreation; enjoy entertainment; attend

lectures and other forms of education; explore and

obtain social services; and hold interactive conferences.

It is, in short, a ‘public accommodation’ under Title III of

the ADA, with obligations not to discriminate, and it must

be accessible, whether attached to a bricks-and-mortar

entity or existing only in cyberspace”).

51. Hooks v. OKBridge, Inc., No. 99-214 (W.D. Tex. Aug. 4,

1999), aff’d without opinion, 232 F.3d 208 (5th Cir.

2000) (holding that Title III does not apply to a Website

because of a lack of physical space).

52. Brief of the United States as Amicus Curiae Supporting

Appellant, Hooks v. OKBridge, Inc., 232 F.3d 208 (5th

Cir. 2000), available at

http://www.usdoj.gov/crt/briefs/hooks.htm (“Defendant

[offeror of computerized bridge tournaments] is a

commercial business offering services for a fee to the

general public and easily falls within the ADA's definition

of a public accommodation as a ‘private entity’ that

operates a ‘service establishment,’ place of

‘entertainment,’ or place of ‘recreation.’ 42 U.S.C.

12181(7)(C), (F), (L). It delivers those services from its

place of business in San Diego, California, through the

internet to its customers. Its computerized bridge

tournaments are the ‘services…of [that] place of public

accommodation.’”).

53. See C

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH

DISABILITIES, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,

EBSITE ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 9 n.17

(2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

54. C

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH DISABILITIES,

SSOCIATION OF THE BAR OF THE CITY OF NEW YORK, WEBSITE

ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 9-10 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

(arguing that “the key attribute of the public

accommodation is the act of selling to the public, not the

nature of the location where it does the selling.

Furthermore, a Website is a ‘facility,’ as defined by the

DOJ regulations promulgated at the direction of the

ADA”). See also Bick, supra note 46, at 220; Ranen,

supra note 46, at 391-92.

55. 42 U.S.C. § 12181(7).

56. See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006,

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1014 (6th Cir. 1997) (“The doctrine of noscitur a sociis

instructs that ‘a . . . term is interpreted within the

context of the accompanying words ‘to avoid the giving

of unintended breadth to the Acts of Congress’’”). See

also Ranen, supra note 46, at 398 (“One commentator

used the canon of ejusdem generis to explain the Sixth

Circuit’s rationale. This canon states that ‘when general

words follow an enumeration of specific words, the

general words are to be read as applying only to the

same general kind or class as the specific words’”).

Applying these canons, if the specific terms listed in 42

U.S.C. § 12181(7) are all physical places, then the

phrase “other service establishments” is understood to

also refer to physical places.

57. See C

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH

DISABILITIES, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK,

EBSITE ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 10 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf

. See also Carparts Distrib. Ctr. v. Automotive

Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994); Doe

v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.

1999); Ranen, supra note 46 at 396; Bick, supra note

46, at 214, 219-220.

58. A major website like Target.com, which operates

nationally and arguably has sufficient contacts in every

state to be subject to personal jurisdiction, is vulnerable

in every circuit and must comply with the strictest

interpretation of the ADA’s applicability to websites.

59. Carparts Distrib. Ctr. v. Automotive Wholesaler’s Ass’n,

37 F.3d 12, 19 (1st Cir. 1994) (“The plain meaning of

the terms do not require “public accommodations” to

have physical structures for persons to enter. Even if the

meaning of “public accommodation” is not plain, it is, at

worst, ambiguous. This ambiguity, considered together

with agency regulations and public policy concerns,

persuades us that the phrase is not limited to actual

physical structures. By including ‘travel service’ among

the list of services considered ‘public accommodations,’

Congress clearly contemplated that ‘service

establishments’ include providers of services which do not

require a person to physically enter an actual physical

structure. Many travel services conduct business by

telephone or correspondence without requiring their

customers to enter an office in order to obtain their

services. Likewise, one can easily imagine the existence

of other service establishments conducting business by

mail and phone without providing facilities for their

customers to enter in order to utilize their services. It

would be irrational to conclude that persons who enter

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an office to purchase services are protected by the ADA,

but persons who purchase the same services over the

telephone or by mail are not. Congress could not have

intended such an absurd result”). See also Ranen, supra

note 46, at 395-97.

60. 179 F.3d 557, 559 (7th Cir. 1999) (“The core meaning of

this provision, plainly enough, is that the owner or

operator of a store, hotel, restaurant, dentist's office,

travel agency, theater, Web site, or other facility

(whether in physical space or in electronic space.…) that

is open to the public cannot exclude disabled persons

from entering the facility and, once in, from using the

facility in the same way that the nondisabled do”)

(emphasis added).

61. 121 F.3d 1006, 1014 (6th Cir. 1997)

62. Id. (“The doctrine of noscitur a sociis instructs that ‘a . .

. term is interpreted within the context of the

accompanying words ‘to avoid the giving of unintended

breadth to the Acts of Congress’’”). See also Ranen,

supra note 46, at 395-98 (“One commentator used the

canon of ejusdem generis to explain the Sixth Circuit’s

rationale. This canon states that ‘when general words

follow an enumeration of specific words, the general

words are to be read as applying only to the same

general kind or class as the specific words.’”). Applying

these canons, if the specific terms listed in 42 U.S.C. §

12181(7) are all physical places, then the phrase “other

service establishments” is understood to also refer to

physical places.

63. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d

1104, 1114 (9th Cir. 2000) (“Title III provides an

extensive list of ‘public accommodations’ in

§ 12181(7),

including such a wide variety of things as an inn, a

restaurant, a theater, an auditorium, a bakery, a

laundromat, a depot, a museum, a zoo, a nursery, a day

care center, and a gymnasium. All the items on this list,

however, have something in common. They are actual,

physical places where goods or services are open to the

public, and places where the public gets those goods or

services. The principle of noscitur a sociis requires that

the term, ‘place of public accommodation,’ be interpreted

within the context of the accompanying words, and this

context suggests that some connection between the good

or service complained of and an actual physical place is

required”).

64. Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d

Cir. 1998).

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65. Id. at 612-14.

66. Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp.

2d 1312, 1317-19 (S.D. Fla. 2002).

67. Id. at 1319.

68. 232 F.3d 208 (decision without published opinion). For a

description of the case, see U.S. Department of Justice,

Enforcing the ADA: A Status Report from the Department

of Justice (2000),

http://www.usdoj.gov/crt/ada/aprsep00.htm.

69. For a discussion of the steps a company should take in

order to ensure compliance, see Fkiaras, supra note 37;

OMMITTEE ON LEGAL ISSUES AFFECTING PEOPLE WITH DISABILITIES,

SSOCIATION OF THE BAR OF THE CITY OF NEW YORK, WEBSITE

ACCESSIBILITY FOR PEOPLE WITH DISABILITIES 5-6 (2006),

http://www.nycbar.org/pdf/report/Website_Accessibility.pdf