By Anita Ramasastry
FindLaw Comnist Special to CNN.com
Thursday, November 7, 2002 Posted: 2:39 PM EST (1939 GMT)

(FindLaw) -- In late October, a Florida federal court ruled that Southwest Airlines does not have to retool its Web site to make it more accessible to the blind. United States District Judge Patricia Seitz ruled that the Americans with Disabilities Act (ADA) applies only to businesses with a nexus to a physical location, not Web-only businesses.

The ruling is the first to deal squarely with the question of whether the ADA applies to Web sites. Unfortunately, it is in error.

Since 1996, the United States Department of Justice has taken the position that the ADA does indeed apply to Web sites. DOJ is correct; the law applies not just to listed types of business, but also to "other service establishments," and Web sites should count.

If the ADA is deemed inapplicable to Web sites or to Internet-only businesses, we need to amend the legislation. Otherwise, Web-only businesses will escape requirements that are imposed on their brick and mortar counterparts.

And worse, disabled persons will be denied access to those special discounts and services only available over the Internet -- thereby becoming victims of a new form of discrimination under which they must pay more for the same goods and services.

Since Internet booking and purchasing is cheaper for many industries, the risk of such discrimination is very real.

One of the major goals of the ADA is to remove barriers that prevent people from accessing important services. Architectural barriers are not the only kind; ramps and elevators are only the beginning of the ADA protections. The statute also protects disabled individuals against other forms of exclusion and "relegation to lesser services, programs, activities, benefits, jobs, or other opportunities."

Moreover, even if architecture were the focus, what is at stake in cases such as Gumson's is Web architecture that acts just like a physical barrier in the real world, to keep the disabled out.

Is A Web site a 'service establishment'?
Robert Gumson is a blind consumer who uses a screen reader and voice synthesiser when he accesses Web sites. He sued Southwest Airlines alleging that its Website -- which enables consumers to check airline fares and schedules, and book airline reservations -- was not accessible to him. Specifically, he faulted Southwest for failing to present its text so that it could be read by synthesised speech technology, thereby making it "extremely difficult" for blind or visually impaired persons to access the site.

Is the Southwest site covered by the ADA? The question depends on whether the site is a "public accommodation" -- and that, in turn, depends on whether the site is a "service establishment." Under the ADA, the definition of "public accommodation" includes a list of 12 categories, including travel offices, barbershops, pharmacies and "other service establishments."

All of the specific categories refer to physical establishments. That's not surprising, however. When the ADA was enacted in 1990, the Internet had not developed into a marketplace where goods and services were offered to consumers. Commercial and consumer traffic on the Internet did not exist and, indeed, was prohibited.

That doesn't mean the ADA doesn't apply to the Web. After all, the Constitution applies to aeroplanes even though the Framers rode horses -- and, indeed, applies to the Web even though the Framers did not have AOL.

Similarly, perhaps because Congress anticipated that it could not provide for every technological contingency, the ADA's legislative history suggests that the statutory definition of "public accommodation" is intentionally broad.

A Senate report on the ADA states that within each of these 12 categories, the legislation only lists a few examples and then, in most cases, adds the phrase "other similar" entities. It makes clear, in addition, that the committee intends that the "other similar" terminology should be construed liberally, consistent with the intent of the legislation that people with disabilities should have equal access to the array of establishments that are available to others who do not currently have disabilities. And a House report contains similar language indicating a broader legislative intent.

The district court nevertheless applied the rule of ejusdem generis -- which says that "where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated."

Since the 12 specific categories referred to physical locations, the court reasoned that the reference to "other service establishment" did too. This ruling was directly contrary to Congress's intent that the statute be broadly construed.

Is there a requirement of a nexus to a physical location?
In reaching its decision, the district court considered the prior decision of the U.S. Court of Appeals for the 11th Circuit in Rendon v. Valley Crest Prods. Ltd. The Rendon court held that individuals with hearing and other impairment could sue the producers of the TV show "Who Wants to Be a Millionaire?" under the ADA, because the show used an automated "fast finger" telephone system to select contestants.

The appeals court found that there was a nexus between the use of the telephone and access to a physical location: the television studio where the show takes place.

Accordingly, it held that the telephone system was part of an ADA-covered service establishment. It also found "the fact that the plaintiffs in this suit were screened out by an automated telephone system, rather than by an admission policy administered at the studio door" to be "of no consequence under the statute," since telephone and other screening systems were common.

A similar nexus should have been found in Gumson, as noted above, since the Website was related to a physical ticket counter. But more fundamentally, no nexus should be required to state an ADA claim.

A Web site that provides the service of expediting a ticket purchase is plainly a "service establishment." Moreover, the ADA covers services "of" -- not "at" -- a place of public accommodation, making clear the services need not be provided on-site to come within the ADA.

Indeed, Congress explicitly included businesses that provide services off-site. For instance, the ADA expressly covers department stores, which may use mail order or telephone ordering; plumbers, who make home visits; lawyers, who provide service in the courtroom and may also visit clients' offices as well as their own.

In short, Web services themselves are clearly covered by the ADA. To suddenly exempt them when they are provided by a Web-only business -- in the precise circumstance when disabled customers have no other alternative -- is the height of judicial folly.

DOJ policy does not require a nexus with a physical location
Significantly, DOJ policy has never suggested that Web services must have a nexus to a physical location to be covered by the ADA. And since DOJ has responsibility to enforce the ADA, it ought to know.

In 1996, in a letter to Sen. Tom Harkin (D-Iowa) summarising DOJ policy, DOJ said that the ADA "requires ... places of public accommodation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities ...."

Thus, "[c]overed entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerised media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well."

(The federal government has also made its own Web sites accessible, showing it means what it says.)

Other judicial decisions and favourable settlements suggest no nexus requirement
Meanwhile, other federal appellate courts --such as the U.S. Courts of Appeals for the 1st Circuit, in Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, and for the 5th Circuit, in McNeil v. Time Insurance Co. -- have concluded that public accommodations are not limited to physical places only.

Courts have accepted that insurance (as opposed to an insurance office) and health benefits, for example, are public accommodations under the ASA.

In addition, other similar ADA suits have resulted in favourable outcomes for disabled plaintiffs with respect to Web site accessibility.

In November 1999, the National Federation for the Blind (NFB) sued America Online after AOL failed to alter proprietary software to allow compatibility with screen readers. AOL agreed to make the next version of its Internet software accessible to blind users.

Then in April 2000, NFB sued the Connecticut Attorney General's Office -- which had provided links to four inaccessible online tax filing services on its Internal Revenue Service's official Web site. The four tax filing services agreed to make their Web sites accessible to the vision-impaired in time for the next tax season.

As recently as October 15, 2002, a federal district court in Atlanta ruled that a mass transit agency violated the ADA by constructing a Web site that was inaccessible for people with visual disabilities. This is one of the first cases to decide that the ADA requires online access for people with disabilities. Although the Atlanta case focuses on other provisions of the ADA relating to a public agency's provision of services, the court nonetheless recognised that the transit agency's responsibility extended to its Web site and Internet services.

The 'reasonable modifications' language means changes won't get too costly

How costly will it be for Web-only businesses to comply with the ADA? Congress held hearings on the subject in February 2000. Critics testified that millions of pages will have to be taken down -- and many will be forced to stay down, due to the cost of modifications. ADA advocates on the other hand, said costs would be minimal.

Who's right? It's probably the advocates. The reason is that the ADA does not require all possible modifications, only "reasonable ones." Specifically, its implementing regulations state: " [a]public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations." (Emphasis added).

Thus, if ensuring accessibility would be too burdensome, it might not be necessary. For instance, small mom-and-pop stores with Internet sites will not be crushed by the weight of burdensome ADA compliance. And even large sites need not make every conceivable modification.

Accessibility can work: Indeed, the Web's leading standards group, the World Wide Web Consortium (W3C) has been promoting it since 1997, when it launched its Web Accessibility Initiative (WAI). Since then, the group has periodically put forward voluntary accessibility guidelines and recommendations for software makers and Web publishers.

If the courts won't interpret the ADA to allow Web accessibility, Congress should certainly amend the statute to do so. Otherwise Web-only businesses will be advantaged over others, since only they will be able to avoid ADA compliance costs.

Moreover, we will risk erecting economic barriers as well as virtual barriers for disabled citizens in the U.S. Many of us have benefited from exclusive offers, prices and promotions available through the Internet. If these promotions remain inaccessible to the disabled, we will only perpetuate the barriers to services that the ADA -- and the Internet itself -- was meant to remove.

The Internet could someday become a utopian medium by which the disabled can communicate with the non-disabled on equal ground. It would be a cruel irony if the Internet, which offers so much potential for the disabled, were used as a new forum for discrimination against them instead.