Websites need to become ‘places of public accommodation’ under the Americans with Disabilities Act

In 1990, the Americans with Disabilities Act (ADA) was groundbreaking. Congress passed it to eliminate discrimination against people with disabilities. Though the ADA never fully achieved that goal, it was a significant step in the right direction. However, 30 years later, in the information age, the ADA is obsolete and urgently needs an update.

Title III of the ADA prohibits disability discrimination in “places of public accommodation,” which include businesses that are generally open to the public. Congress listed several examples including schools, retail stores, restaurants and movie theaters. Because the ADA was drafted in 1990, when the internet was in its infancy, lawmakers did not include websites, apps, and social media platforms in the list. Nothing resembling the modern internet existed, and they could not foresee the extent to which people would use online platforms. Accordingly, they limited their examples to brick-and-mortar businesses.

Thirty years later, people with disabilities are paying the price for this omission, which has been highlighted by the COVID-19 pandemic. While self-quarantining, Americans use online platforms to work, buy food, consume news and entertainment, attend school, and communicate with friends and family. While brick-and-mortar businesses struggle, and many permanently close, online platforms benefit and are some of the COVID economy’s biggest winners. However, because platforms are not considered places of public accommodation, they need not comply with Title III and be accessible to people with disabilities.

That means people with physical and mental impairments may be denied access to essential services that most Americans rely on during the pandemic. For instance, people with vision impairments may not be able to order food if delivery apps lack accessible interfaces. If schools adopt platforms that are not accessible, people with disabilities will be unable to learn and complete schoolwork. If popular social networking platforms such as Skype and Zoom are not accessible, they may be unable to socialize and work. People with impairments are also susceptible to algorithmic disability discrimination, where artificial intelligence infers people’s impairments and denies them access to goods and services.

To accomplish the ADA’s original mandate, Congress must amend Title III of the ADA to clarify that online platforms are places of public accommodation. In recent years, some federal courts have grappled with this issue, and the results have been inconsistent.

In National Federation of the Blind v. Scribd, the U.S. District Court for the District of Vermont held that an internet-based document repository was a place of public accommodation and must be accessible. The court reasoned that it wouldn’t make sense for people with disabilities to be treated differently by the law if they bought an insurance plan from a brick-and-mortar store or bought the same plan from an online vendor. However, in Cullen v. Netflix, the U.S. District Court for the Northern District of California disagreed, finding that “because Netflix’s services are not connected to any ‘actual, physical place,’ Netflix is not subject to the ADA.”

In National Association of the Deaf v. Netflix, the U.S. District Court of the District of Massachusetts reached the opposite conclusion. The court said excluding companies that deliver services online from the definition of places of public accommodation would frustrate Congress’s intent that people with disabilities “fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”

Last October, in Domino’s Pizza v. Robles, the U.S. Supreme Court had the opportunity to resolve the issue, and it declined by punting the case back to a lower court. Because the Domino’s Pizza website was not fully accessible, the plaintiff, who was blind, could not order food from it. He sued Domino’s in a California federal district court for violating Title III of the ADA. The district and appellate courts ruled in his favor. But Domino’s appealed to the Supreme Court and argued that the ADA did not apply to its website because apps and online platforms are not considered places of public accommodation.

The Supreme Court’s refusal to hear the case may be a victory for the plaintiff. But for other people with disabilities, it was a lost opportunity because whether online platforms are places of public accommodation remains unclear at the national level. Until that question is resolved, many companies will neglect to make their online platforms accessible.

On the ADA’s 30th birthday, Congress should end this debate once and for all by amending Title III.

People with disabilities deserve the same access to online services, whether or not those services have brick-and-mortar equivalents, and the COVID-19 pandemic has made this need undeniably clear.

Mason Marks is assistant professor of law at Gonzaga University School of Law, the 2020-21 Edmond J. Safra/Petrie-Flom Center fellow-in-residence at Harvard University and an affiliated fellow at Yale Law School’s Information Society Project. In addition to a law degree from Vanderbilt University, he also holds an M.D. from Tufts University School of Medicine. Follow him on Twitter @MasonMarksMD