Man Sues Airlines for Fare Access
BY KENDRA MAYFIELD
When Robert Gumson, who is blind and uses a screen reader to browse the Web, couldn't access Southwest Airlines' website to make a reservation, he did what any red-blooded American would do: He sued.
Gumson and disability rights group Access Now sued Southwest Airlines under the Americans with Disabilities Act (ADA), which until now has only been applied to brick-and-mortar facilities.
Access Now has filed lawsuits in U.S. District Courts in Miami against both Southwest Airlines and American Airlines under Title III of the ADA.
The cases will test the boundaries of the ADA. The outcome of the suits will determine whether the same law that requires movie theaters, department stores and other public spaces to provide ramps and other accommodations for the disabled also applies to the Internet.
The ADA prohibits discrimination on the basis of disability where access to goods and services of a "public accommodation" is concerned. So far, no federal appellate case has directly held that a website is a place of public accommodation under the ADA.
"The ADA has to be reinterpreted as we move ahead with technology," said Phyllis Resnick, vice president and executive director for Access Now. "We believe that any public accommodation is defined as a place that makes its goods and services available. The Internet has very much become a marketplace."
The complaints hinge on whether American and Southwest Airlines' online ticketing, reservations and airline, hotel and car-rental services can be considered "public accommodations."
"The primary focus of these actions is the public's 'access' to these goods and services sold over the website," said Howard Behar, one of the attorneys representing Access Now. "Providing access to only those services that are offered at American or Southwest's physical ticketing locations, when the rest of the non-vision impaired public is also given access to the Internet in the convenience of their home/office or anywhere is not the 'full and equal enjoyment' mandated by law."
In both lawsuits, the airlines have filed a motion to dismiss.
Defendants say that Congress didn't intend to include the Internet, which was only in its nascent stages at the time the law was passed in 1990.
"Congress clearly intended only to encompass brick-and-mortar physical locations within Title III's realm," states Southwest's motion to dismiss. "Internet websites are not physical locations; are not 'facilities' as defined in the regulations; and are not 'places of public accommodation' as defined in the ADA."
But plaintiffs say that like the Constitution, the ADA was crafted so it could be reinterpreted.
For example, two years ago, the Supreme Court ruled that professional golfer Casey Martin could use a golf cart on the PGA Tour under Title III of the ADA.
"Certainly no one envisioned that at the time the ADA was passed," Resnick said.
The complaints allege that because both American and Southwest have special price offerings that are only available online, blind users who are denied access to these websites cannot take advantage of special fares when they make phone reservations.
"With the phone reservation, you're at the mercy of the person who is speaking," Resnick said. "Whereas on the Internet, if you can see it, you're much more in control of the information you're dealing with. On the phone, you don't really know what's the best deal. It's not equivalent service." This isn't the first lawsuit alleging that the ADA applies to the Internet. In 1999, the National Federation of the Blind sued America Online, alleging that its service was inaccessible to blind users. Earlier this year, Access Now sued Barnes & Noble and Claire's Stores alleging that both websites violated the ADA. Both cases settled out of court.
However, in the Barnes & Noble class-action settlement, the court recognized that "No court has held that Internet websites made available to the public … must be accessible. The likelihood of prevailing on this issue at trial is clearly uncertain," according to Southwest Airlines' motion to dismiss.
Access Now's suits against Southwest and American Airlines could eventually reach the Supreme Court.
"I imagine that it's going to go to the highest level," Resnick said.
If the court rules that the ADA applies to the airlines' websites, then all commercial websites could likely be subject to the ruling.
"We believe that commercial websites that offer goods and services over the Net would be subjected to the ADA," Behar said. "The implications would be far-reaching and (would) encourage Web designers and their commercial website clients to understand that their audience includes the countless number of vision-impaired individuals that use the Internet everyday. Even small sites should be encouraged to become accessible."
"I imagine that it would set a very strong precedent," Resnick said in agreement. "All (commercial businesses) would eventually have to get around to making their sites accessible."
But some legal experts warn that a ruling against the airlines could open up a string of threatening litigation that could make even small websites liable for inaccessibility.
But disability rights advocates argue that webmasters should make their sites accessible before litigation becomes a major threat.
"Don't wait to be sued. Do the right thing," Resnick said.