Cybertelecom Federal Internet Law & Policy An Educational Project

American Disabilities Act

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How might the ADA apply to Internet applications? The two obvious disabilities that might affect ones ability to be active in cyberspace are visual or motor skill impairments. In addition, hearing impairments would impede the ability to enjoy streaming media.

There are situations where it appears undisputed that the ADA would apply to Internet resources; and there are situations where it is not so clear.

• Places of employment of 15 individuals or more, employers may not discriminate against applicants or employees with disabilities, with regard to opportunity to work, or the terms, benefits, and conditions of employment. Where the “essential functions” of a job requires Internet access, the employer would likely be obligated to provide that ability. See also Sec. 508 (Federal employees); Sec. 504 (recipients of federal funds).
• State and local governments with their egovernment initiatives, providing services online, would fall under the ADA.
• Public transportation providing information concerning its service online would likely fall under the ADA.
• According to the Department of Education, local and state universities fall under the ADA.

Where there is considerable debate is whether online commercial enterprises might be considered "public accommodations" under the ADA and therefore fall under title III obligations. 42 U.S.C. § 12182(a). Borders bookstores fall under the ADA; does Amazon.com?

Places of "public accommodation" are entities, the operation of which affects commerce. A list of public entities is provided in Sec. 301(7) of the ADA - this is a list of examples and is not inclusive.

• Some courts have concluded that a "public accommodation" must be a physical - not a virtual - place. [Weyer v 20th Century Fox, AccessNow v SW Airlines] [Parker v MetLife] [Ford v Shering-Plough] Advocates of this position note that all of the "public accommodations" listed as examples in the ADA regulations are physical places.
• Other courts have found that places of public accommodation can be "virtual." [Doe v. Mutual Omaha] [Carparts v. Automotive Wholesalers] [Pallozzi] [See also National Federation for the Blind] [See also Access Now]

Thus, there is currently a split among federal circuit courts; some would be receptive to the application of the ADA to virtual stores; some would not.

"A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense. " 28 C.F.R. § 36.303

Several other laws apply to access by individuals with disabilities. See Accessibility Law Chart.

“ DOJ pointed out for example that reading Title III to exclude the Internet, when the Internet never existed and Congress never thought of it one way or the other at the time it passed the ADA, would be analogous to holding that freedom of speech does not extend to movies since movies were not mentioned in the First Amendment, or that the Fourth Amendment could not apply to the privacy of telephone conversations because telephone wires do not come within the ordinary meaning of the words “persons, papers and effects” used in the Fourth Amendment.” NCD 2003.

The dichotomy of approaches split between physical and virtual jurisdictions is reflected in a split between authorities on whether the ADA applies to commercial Internet ventures. DOJ, the National Council on Disabilities, and the NY Attorney General clearly believe that commercial Internet ventures can be places of public accommodations. AOL settled an ADA lawsuit rather than risk having it resolved by a court. However, a Florida federal district court, in the only resolved litigation on point, concluded that the website of Southwest Airlines was not a place of public accommodation and does not fall under the ADA.

The ADA could apply to online stores in a different way. Places of "public accommodations," along with other entities that fall under the ADA, must provide "effective communications" with individuals with disabilities. "Effective communications" should be (1) timely, (2) accurate (for example when involving translation), and (3) offered in a "manner or medium appropriate to the significance of the message and the abilities of the individual with disabilities." [OCR Letter 1997] Responding to individual needs on an ad hoc basis does not cut it. According to the 1996 Department of Justice letter, "Covered entities that use the Internet for communications regarding their programs, goods, and services must be prepared to offer those communications through accessible means as well." Thus, if an entity is communicating to the public through an online presence, then that entity must effectively communicate with the disabled as well. The entity could do this through alternative means such as a telephone operator or braille information products that they distribute. Certainly, where one falls under the obligation to provide effective equivalent communication, this could be achieved by using existing online communication and taking advantage of the versatility of the medium to make it accessible.

This would still leave a great amount of the Internet not covered by the ADA. Many websites, if not most, are personal or private websites with anything from family history to local individual sports club information. These private non commercial websites are not public accommodations. In addition, religious entities and private clubs are also exempt from exempted from the public accommodations requirements of the ADA. [Private] [Cong. Hearing]

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