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Article - Equal Before the Law and on the Web; Unless You are Blind (November 2002)

The Facts
The Decision
Place of Public Accommodation
The Facts of Access Now Re-visited

Yee Fen Lim, Galexia Associate

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Published

Internet Law Bulletin, volume 5, number 5, 2002

The case of Access Now v Southwest Airlines Co[1] handed down on 18 October 2002 in a United States Federal court marks a move in an ugly direction for equality on the World Wide Web. The case ruled that an airline, Southwest Airlines, did not have to revamp its web site to make it more accessible to the blind. This article will examine the decision and argue that the case was wrongly decided.

The Facts

The plaintiffs were Access Now, a non-profit, access advocacy organisation for disabled individuals, and Robert Gumson, a blind individual. Their contention was that Southwest’s Internet web site, southwest.com, excludes the plaintiffs in violation of the Americans with Disabilities Act 1990 (‘ADA’),[2] as the goods and services Southwest offers at its ‘virtual ticket counters’ are inaccessible to blind persons.

With the development of information technology, a number of software applications - such as voice-dictation software, voice-navigation software, and magnification software - have been available on the market to assist visually impaired persons in navigating through the web. However, not all of these different software are fully effective. Further, their abilities to successfully interpret text and graphics on a given web page depend on the web page’s abilities to allow and enable the use of such assistive technology. Without a compatible web page or web site, software such as voice-dictation software will be either totally or partially ineffective. This was the case with the defendant’s web site, southwest.com.

In light of the accessibility problems faced by numerous visually impaired World Wide Web users, the question was whether Title III of the ADA mandates that Internet web site operators modify their sites so as to provide complete access to visually impaired individuals. The purpose of the ADA as stated by the United States Congress when it enacted the ADA in 1990 were among other things, to provide ‘a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,’ and ‘clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.’[3] The ADA created a number of statutory rights including Title III’s prohibition against discrimination in places of pub1ic accommodation.[4] The defendant’s argument was that southwest.com is not a place of public accommodation and therefore does not fall within the scope of Title III of the ADA.

Southwest’ s Internet web site provides consumers with the means to, among other things, check airfares and flight schedules, book hotels and air tickets, as well as make car reservations, and stay informed of Southwest’s sales and promotions. It was estimated that 46% of Southwest’s passenger revenue was generated by online bookings via southwest.com. It was also tendered as evidence that Southwest prided itself on operating an Internet web site that provided the highest level of business value, design effectiveness, and innovative technology use achievable. Despite the fact that southwest.com offers the sighted customer the promise of independence of online airline/hotel booking in the comfort and safety of their home, it was clear from the facts that a blind person with a screen reader with a voice synthesizer on their computer was denied this comfort. Specifically, the southwest.com web site failed to provide ‘alternative text’ which would provide a ‘screen reader’ program the ability to communicate via synthesized speech what is visually displayed on the web site.

The Decision

The District Court in the Southern District of Florida determined that the most important issue was the threshold issue of whether an Internet web site, such as southwest.com, is a ‘place of public accommodation’ as defined by the ADA. It found that this was a question of statutory construction and required an analysis of the plain language of the relevant statute.

Title III of the ADA states that:

‘No 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.[5]‘

The statute specifically identifies 12 categories of ‘places of public accommodation’ including hotels and other places of lodging, shopping centres and other sales or rental establishment, restaurants and other establishments serving food or drink.[6] The Regulations a1so define a ‘place of public accommodation’ as ‘a facility, operated by a private entity, whose operations affect commerce’ and fall within at least one of the 12 enumerated categories.[7] ‘Facility’ is defined in section 36.104 as:

‘all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.[8]‘

The Court noted that in two earlier cases in the Eleventh Circuit, the higher court in its jurisdiction, Title III of the ADA was held to govern solely access to physical, concrete places of public accommodation. According to the District Court, a public accommodation must thus be a physical, concrete structure and does not cover virtual spaces and hence does not include Internet web sites. The plaintiffs argued that the southwest.com web site fell within one of 3 of the enumerated categories, namely, a place of exhibition or entertainment, a place of public display, or a sales or rental establishment. However, the Court dismissed this argument as contorting definitions by selecting language from three separate statutory subsections and applying them to an un-enumerated specific term, namely Internet web sites. As far as the Court was concerned, the general terms, ‘exhibition,’ ‘display,’ and ‘sales establishment,’ are limited to their corresponding specifically enumerated terms, all of which are physical, concrete structures, namely: ‘motion picture house, theater, concert hall, stadium’; ‘museum, library, gallery’; and ‘bakery, grocery store, clothing store, hardware store, shopping center’ respectively.[9]

Reference was also made by the plaintiffs to the case of Carparts Distribution Ctr. Inc. v. Automotive Wholesaler’s Assoc. of New England,[10] a decision of the First Circuit which held that the ADA’s definition of public accommodation is not limited to actual physical structures, but includes, inter alia, health-benefit plans. The Court dealt with this argument by stating that it was not bound by the decisions of the First Circuit, and that the Eleventh Circuit, the higher court in its jurisdiction, has not read Title III of the ADA as broadly as the First Circuit. It specifically referred to the Eleventh Circuit case of Rendon v. Vallevcrest Prods. Ltd[11] which involved a group of individuals with hearing and upper-body mobility impairments suing the producers of the television game show ‘Who Wants To Be A Millionaire’. In that case, the producers of the television quiz show selected the contestants for appearance on the show via an automated telephone answering system. Aspiring contestants calling the number had to answer a series of questions that were pre-recorded. The callers recorded their answers to these questions by pressing the appropriate keys on their telephone keypads. Those who answered all of the questions correctly in the first round of the competition known as the ‘fast finger process’ were then subjected to a random drawing to narrow the contestant field. The selected individuals then proceeded to the second round, in which they were required to answer additional trivia questions.

In Rendon, the court held that the telephone selection process was a discriminatory screening mechanism that deprived certain disabled persons of the opportunity to compete for the privilege of being a contestant on the game show. The Eleventh Circuit also observed that discrimination via an imposition of screening or eligibility requirements does not need to occur on site to offend the ADA. Further, the Eleventh Circuit found that a nexus between the challenged service and a physical, concrete place of public accommodation, namely the television studio was established, and that was sufficient for the operation of the ADA.

In applying the principles in Rendon, the court in Access Now said this:

‘...the defendants in Rendon conceded, and the Eleventh Circuit agreed, that the game show at issue took place at a physical, public accommodation (a concrete television studio), and that the fast finger telephone selection process used to select contestants tended to screen out disab1ed individuals, the Internet website at issue here is neither a physical, public accommodation itself as defined by the ADA, nor a means to accessing a concrete space such as the specific television studio in Rendon.[12]‘

The court in Access Now relied on the United States Supreme Court decision in Reno v. ACLU[13] where it was held that the Internet is a unique medium located in no particular geographical location but available to anyone, anywhere in the world, to come to the conclusion that the Internet website, southwest.com, does not exist in any particular geographical location. And hence, it can have no nexus with a physical, concrete place of public accommodation.

Place of Public Accommodation

While it is to be applauded that Judge Seitz sitting alone in Access Now understood the nature of the Internet as set out in Reno v. ACLU, Her Honour’s analysis of the issue of a nexus with a physical, concrete place of public accommodation was not entirely convincing. The case of Rendon v. Vallevcrest Prods. Ltd was referred to and relied on by Judge Seitz and it is this case that holds the key to a more satisfactory outcome.

In Rendon, the court placed emphasis of the definition of ‘discrimination’ in section 12182(b)(2)(A)(i) of the ADA, which, prohibits:

‘...the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.’

From this, the Eleventh Circuit found that the definition of discrimination in Title III covers both tangible barriers and intangible barriers. According to the court, tangible barriers are those physical and architectural barriers that would prevent a disabled person from entering an accommodation’s facilities and accessing its goods, services and privileges.[14] Intangible barriers are those such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges.[15] Further, the court found that the ADA did not require that the discrimination via an imposition of screening or eligibility requirements, occur on site to offend the ADA. Indeed, the court stated that it would be absurd to hold that the game producers could avoid liability under the ADA by screening potential contestants just outside the studio on the basis that they were deaf. Similarly, the Eleventh Circuit found that that the fact that the plaintiffs were screened out by an automated telephone system, rather than by an admission policy administered at the studio door was of no consequence under the ADA.

It is interesting that the Eleventh Circuit noted that eligibility criteria are frequently implemented off site, for example, through the mail or over the telephone. It referred to the fact that Congress specifically noted in the ADA’s ‘findings of fact’[16] that ‘individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers’ and that these were the very sorts of discrimination the statute sought to redress. On the facts, the barrier at issue was the automated telephone system, a communication barrier. It was not a physical barrier erected at the site of a public accommodation or public entity, but it did involve the use of discriminatory screening methods to deny access to a provided good, service, privilege or advantage provided at a physical public place of accommodation.

The Facts of Access Now Re-visited

Given the principles in Rendon, it is strange that the District Court in Access Now did not reach a different decision. Although it is true that the Internet is a virtual place, it does not follow that e-commerce occurring on the Internet does not have any physical geographical attachment. When one litigates over a contract concluded in cyberspace, one litigates in the place of the contract, that is, a physical place. Under the UNCITRAL Model Law on Electronic Commerce[17] for example, the place of contract is the place of business of one of the parties, depending on the circumstance. Under the facts in Access Now, the physical place of accommodation would be the office or offices of the airline, where presumably the air tickets are purchased for example. Utilising the reasoning of the definition of ‘discrimination’ in Rendon, the intangible barrier would be the imposition of a screening method, policy or procedure through the web site southwest.com that is hostile to assistive software for the visually impaired. There is thus also a clear nexus between the challenged web site and a physical, concrete place of public accommodation, namely the offices of the airline, and hence, the operation of the ADA would be triggered.

Yee Fen Lim B.Sc LLB LLM (Hons)

Senior Lecturer
Division of Law
Macquarie University

Galexia Associate

[1] United States District Court, Southern District of Florida, CASE NO. 02-21734-C1V -SEITZ/BANDSTRA. Decision available on the US District Court web site at <http://www.flsd.uscourts.gov>.

[2] 42 U.S.C. §§ 12101.

[3] Pub. L. No. 101-336, § 2(a). 104 Stat. 327, 328.

[4] 42 U.S.C. § 12182(8).

[5] 42 U.S.C. § 12182(a).

[6] 42 U.S.C. § 12181(7).

[7] 28 C.F.R. § 36.104.

[8] Ibid.

[9] 42 U.S.C. §§ 12181(7)(C), (H) & (E).

[10] 37 F .3d 12 (1st Cir. 1994).

[11] 294 F.3d 1279 (llth Cir. 2002).

[12] Page 10 of judgment.

[13] 521 U.S. 844 (1997).