Miami Daily Business Review 10/7/02

The ADA and The Internet

BY MATTHEW HAGGMAN

When Robert Gumson logs on to the Internet, he uses a software program that converts Web site content into speech. But when he logged on to Southwest Airlines' Web site to make a reservation, Gumson, who is blind, found that the site was incompatible with his screen-reader program.

So Gumson and a Miami Beach, Fla.-based disability rights group, Access Now, filed lawsuits in U.S. District Court in Miami in June and July against Dallas- based Southwest and Dallas-based American Airlines under the Americans with Disabilities Act. They are doing so under an untested legal theory. Namely, that ADA provisions on the accessibility of public accommodations to the disabled apply to Internet Web sites just as they do to brick-and-mortar facilities like movie theaters and department stores.

The parties are arguing over what Congress intended when it passed the landmark disability legislation in 1990. The plaintiffs claim that Congress wrote the ADA so broadly that the Internet is covered, while the defendants take the position that Congress never meant to include the Internet. Cyberspace was in its infancy at the time the law was crafted. In legal terms, the argument is whether a Web site is a "public accommodation" under Title III of the ADA.

Gumson is an Access Now member who lives in Albany, N.Y. The Southwest case is before U.S. District Judge Patricia A. Seitz and the American case is before U.S. District Judge Adalberto Jordan.

In both lawsuits, the airlines have responded by filing a motion to dismiss on grounds that the Title III of the ADA was meant to apply to brick-and-mortar facilities rather than Web sites, which exist digitally rather than physically.

Disability rights and corporate defense attorneys are anxiously awaiting the trial court rulings, because many anticipate that this issue could wind up before the U.S. Supreme Court.

"If the court were to find that the ADA applies to the Internet, it's a potentially huge development," said Mark J. Neuberger, managing partner of Buchanan Ingersoll in Miami who heads the firm's labor and employment group. "Already the ADA is a hotbed of litigation."

"This is cutting edge litigation because there is very little case law and authority on the subject," says Anamarie Maltzman, an associate focusing on employment law at Steel Hector & Davis in Miami who recently clerked for U.S. District Judge Ursula Ungaro-Benages in Miami.

There have been previous lawsuits alleging that the ADA applies to the Internet, but all have settled without a ruling on the merits.

In 1999, the National Federation of the Blind sued America Online in U.S. District Court in Boston alleging that AOL's service was inaccessible to blind users and therefore violated the ADA. In July 2000, AOL agreed to make all of its sites compatible with screen reader technology and the case was settled without a substantive ruling.

Over the past two years, Access Now has sued bookseller Barnes & Noble and retailer Claire's Stores for maintaining Web sites that allegedly violated the ADA. Both cases settled.

Gumson and Access Now are represented by Steven R. Reininger and Howard R. Behar of Rasco Reininger Perez & Esquenazi in Coral Gables. Southwest is represented by K. Renee Schimkat, a partner at Carlton Fields in Miami. American is represented by Anne Marie Estevez, a partner at Morgan Lewis & Bockius in Miami. Neither Schimkat nor Estevez returned calls for comment.

"The Internet has become a huge shopping mall and is very important to blind people who sometimes have trouble getting around," said Reininger. "It is critical that there be access."

Since it was founded four years ago, Access Now has filed more than 440 ADA lawsuits in courts across the country, but only now is it targeting Internet sites. "We are quite tired of being shut out of some areas of life," said Phyllis F. Resnick, vice president and executive director of the 740-member nonprofit group. Resnick started the group with her husband, Edward S. Resnick, president of Access Now, who uses a wheelchair.

In their motions to dismiss, attorneys for the airlines argued that the ADA identifies 12 categories of "public accommodation" that include physical spaces such as museums, banks and grocery stores.

But the attorneys for Gumson and Access Now cite open-ended language in the law to bolster their claims that the ADA includes Web sites as public accommodations. For example, under the law, a public accommodation can be a "place of exhibition or entertainment" or an "other service establishment."

With no court opinion directly on point, each side has turned to various commentaries and legal dicta in search of favorable language.

Earlier this year, Access Now pointed out, the 11th U.S. Circuit Court of Appeals wrote in a case called Rendon v. Valleycrest Production that "the definition of discrimination in Title III covers both tangible barriers … and intangible barriers."

Access Now also cites a 1999 opinion by Richard Posner, the chief judge for the 7th U.S. Circuit Court of Appeals in Chicago. An influential conservative, Posner said in a nonbinding dictum that the ADA applies to Web sites.

"The core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do," Posner wrote in Doe et al. v. Mutual of Omaha Insurance Co.

In 1996, Deval L. Patrick, then assistant attorney general heading the Civil Rights Division of the U.S. Department of Justice, wrote in a letter to U.S. Sen. Tom Harkin, D-Iowa, that "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."

Eight years ago, in a 1994 case, the 1st Circuit commented, "It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not."

But in May, U.S. District Judge K. Michael Moore in Miami wrote in an opinion that "no court has held that Internet Web sites made available to the public by retail entities must be accessible. The likelihood of prevailing on this issue at trial is clearly uncertain."

In that ruling, Moore approved the class-action settlement between Access Now and Claire's Stores. Moore wrote: "Some of the ways that accessibility is being provided, including the Web site, are not addressed in Title III regulations or ADA access guidelines, and therefore, are not required under the ADA."

In 1999 U.S. District Judge Edward C. Prado, in a case styled Hooks v. Okbridge in U.S. District Court in San Antonio, wrote, "If there is no physical structure or facility, there is no place of public accommodation and Title III of the ADA is not applicable."

Some attorneys argue that there's no need to make Internet reservations available to the disabled as long as the airfares people receive through the telephone reservation system are just as low as those available via the Internet.

"The goal of the ADA is to allow equal use and enjoyment," said Buchanan Ingersol's Neuberger. "A blind person who wishes to make a plane reservation online can use the telephone."

Neuberger noted that airfares online are often cheaper than over the telephone and that airlines would have to give disabled customers the online fares.

Some experts, and the airlines, have said that Congress could not possibly have had the Internet in mind when it enacted the disability rights law.

"The Internet was not even on the radar in the late 1980s and 1990 when the ADA was passed," said Paul Lopez, a partner at Tripp Scott in Fort Lauderdale. "For the Internet to be covered by the ADA, Congress will probably have to pass an amendment."

Unless there is a settlement, Judges Seitz and Jordan are expected to rule on the airlines' motions to dismiss in the next few months.

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