Virtual Access: Disability and the Internet
A recent federal court decision pushes for increased online disability access
In 1990, Congress enacted the Americans with Disabilities Act (“ADA”) to address widespread discrimination against disabled people. Title III of the ADA prohibits disability discrimination in places of public accommodation.
The ADA does not require unreasonable changes—public accommodations do not need to fundamentally alter their goods or services. Despite these pragmatic concessions, the Act has been largely successful. The curb ramps, wider doors, and accessible bathrooms you see in buildings—especially in new construction—are largely the result of the ADA.
The ADA’s success has been far more limited online, in part because of uncertainty as to whether the Act covers websites—and more recently, mobile apps and the Internet of Things. The original ADA preceded the online era, and amendments in 2008 did not affirmatively add websites to the scope of its protections. That leaves open to judicial interpretation the question of whether websites fall within the ADA’s definition of “public accommodation.” They might: the definitions section of the Act includes “residual clauses” indicating that entities similar to those listed in the text should be covered. But what counts as similar?
Courts and scholars began exploring this question in the early 2000s. The first judicial decision to examine the issue concluded in 2002 that an airline’s website was not governed by the ADA’s accessibility requirements because the website was not a physical “place” and lacked a “nexus” connecting users to a physical place.
The nexus text requires a website to be operated by a company that also operates a related physical place of public accommodation. The physical facility must be open to the public and not simply a warehouse for goods to be shipped in response to online orders. Under the nexus test, the website can be thought of as an intermediary between a customer and a physical store rather than as its own standalone online business.
Subsequent courts have split in their interpretation of the ADA’s applicability to websites.
In the News
Last week, a federal court in New York issued a decision regarding online disability access in Martinez v. Gutsy, No. 22-CV-409 (E.D.N.Y. Nov. 29, 2022). Judge Garaufis rejected the nexus test in concluding that the ADA covered a standalone website that lacked a nexus to a physical place.
The plaintiff, Pedro Martinez, is visually impaired and legally blind. He uses screen-reading software to access websites. To function, the software requires websites to be coded and designed in a way that allows it to interface with and translate website contents. Websites without this coding and design cannot be accessed by blind users.
The defendant, Gutsy, sells probiotic soda at www.Drinkculturepop.com. Martinez alleges that Gutsy’s commercial website is not only incompatible with screen-reading software but also “contains thousands of access barriers that make it difficult if not impossible for blind and visually-impaired customers to use.”
Judge Garaufis’s opinion began by noting that courts have disagreed over “the question of whether a standalone website is a place of public accommodation under the ADA.” The Second Circuit, whose precedent governs Judge Garaufis’s court, has not yet addressed this question directly, and district courts within the Second Circuit are divided about it. But as Judge Garaufis noted, most district courts in the Second Circuit have not followed the nexus test.
Judge Garaufis focused on Paragraphs 7E and 7F of the definitions section of Title III of the ADA, which list some of the entities covered as public accommodations:
(E) a bakery, grocery store, clothing store, 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
The residual clauses in these paragraphs are “. . . or other sales or rental establishment” in 7E and “. . . or other service establishment” in 7F.
Judge Garaufis noted the difficulty courts have had interpreting these provisions: “The sheer number of judges who, when presented with this statute, have diverged in their interpretations, tells this court that the plain language of Title III of the ADA is ambiguous as to whether standalone websites are covered entities under the statute.” Judge Garaufis concluded that Title III does not support the nexus test.
In My Head
I was delighted to see Judge Garaufis rely on my 2021 coauthored article, “Virtual Access: A New Framework for Disability and Human Flourishing in an Online World,” published in the Wisconsin Law Review. I wrote the article with my former student, Johanna Smith, who is currently an associate in Gibson Dunn’s Houston office. Among other things, Johanna and I proposed a functional test for the ADA that focused the definition of “public accommodation” on the kind of services provided, whether online or offline.
In rejecting the physical nexus test, Judge Garaufis relied on our analysis:
This court agrees that a residual clause in a statute should be read as consistent with the nouns in a preceding list. But perhaps the common threads running through the lists comprising § 12181 (7)(E) and (F) are threads of common function, rather than ones defined by physical presence. As Johanna Smith and John Inazu have argued, “[t]he statutory focus is on the entity's function: serving food, creating space for the public to gather, offering entertainment, providing education, offering banking or transportation services.”
His opinion then observed that 7(E) lists entities engaged in commerce and (7)(F) lists entities engaged in the provision of services. Quoting again from our article, he wrote:
As written, the ADA thus provides guiding, limiting principles for courts to use a function-based analysis in applying the ADA’s anti-discrimination requirements online. Courts assessing ADA public accommodation discrimination claims should thus first assess whether the entity with an internet presence functions like one on the non-exhaustive list of public accommodations in Title III.
The upshot of Judge Garaufis’s ruling is a more expansive application of the ADA to websites even when they lack a nexus to a physical retail store. This matters to online disability access. While many commentators have noted the wealth and class disparities that emerge from the digital divide, disability adds another important lens through which to consider questions of access and equity. Offline, sidewalks and doorways once hindered access to those who needed assistance walking or moving. Today’s virtual sidewalks and doorways complicate access in different but no less important ways. And as online services loom ever larger—from telemedicine to dating to grocery shopping—meaningful accessibility is all the more important.
Judge Garaufis’s ruling is a step in the right direction. A statutory amendment to the ADA—which Johanna and I propose in our article—would be even better.
In the World
Increasing online disability access requires both regulatory reform and private action. Johanna and I note some of the design and content challenges in our article:
For example, Facebook described a wedding photo of one of us as “1 person, wedding and outdoor”—hardly an adequate description for a father-daughter dance. Or consider something of far more dire consequence: an online infographic describing the COVID-19 safety procedures for a university. Depending on the website’s AI technology, the AI-generated text might describe the image as “mask, stick figures, thermometer” instead of giving the more detailed description of “image with mask icon stating that masks must be worn at all times; image with stick figures stating that people must stay six feet apart; and image with thermometer stating that temperatures must be taken daily and reported if they rise above 100.4 degrees.”
One way to lessen the gap between existing software and AI capabilities is to pay greater attention to individual website design. If you operate a website for yourself or your business, you can evaluate its accessibility with a free online tool called Wave: