As I have mentioned previously, I am not afraid to blog on cases blogged on by others. Today, is such a situation. Richard Hunt in his Access Defense blog, which you can find in my blogroll, has blogged on a couple of cases recently, and I thought that I could add my own perspective to them. I will also throw in a third case as well in the process.

The topic for this week is website accessibility both in terms of standing and in terms of whether Internet only businesses are subject to title III of the ADA at all. The cases we will be discussing are: Carrolll v. Northwest Federal Credit Union from the Eastern District of Virginia; Del-Orden v. Bonobos Inc.  from the Southern District of New York; and Nanni v. Aberdeen Marketplace Inc, from the Fourth Circuit. As usual, the blog is divided into categories and they are: Carroll; Not so Fast Says Nanni v. Aberdeen Marketplace Inc.; Not so Fast Says Del-Orden v. Bonobos Inc.; and takeaways. The reader is free to read any or all of the categories, but probably will want to read the whole thing since all the categories are interrelated.



Carroll is a serial plaintiff who went after the Northwest Federal Credit Union when he found out that the website was not accessible to the blind and visually impaired. Northwest Federal Credit Union is a credit union chartered by the federal government whose membership is current or former employees of the Central Intelligence Agency or their immediate family or household members. Plaintiff is not included in that membership field nor did he allege any facts in his complaint suggesting he is a CIA agent or otherwise eligible to become a member of the credit union.

The court reasoned that any planned visit to the website in the future was immaterial unless the plaintiff could show that he was eligible to use the services offered on that website. Since the defendant could not demonstrate he was entitled to participate in any of the services, he could not show any redressable injury. Accordingly, he did not have standing to pursue the case.

The court also reasoned that a website cannot be a place of public accommodation because in the list of public accommodations, websites are not included. Further, the court said that not only are websites not found on the list, but the statute only lists brick-and-mortar places. Finally, Congress has amended the ADA, and at no point, did they choose to add websites as a public accommodation.


Not so Fast Says Nanni v. Aberdeen Marketplace Inc.

Carroll’s standing discussion arguably is saying that a tester cannot have standing. If that is the argument, the Fourth Circuit, which is the same Circuit that Carroll would be appealed to, may well have a different take on it. In Nanni, the Fourth Circuit held that a person’s status as an ADA tester- and for that matter, his litigation history as well-, does not strip a person of standing to sue. According to the Fourth Circuit, a citizen’s right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and is granted and protected by the federal Constitution. So, a person’s motivation for pursuing ADA claims does not deprive him or her standing to sue.



Not so Fast Says Del-Orden v. Bonobos Inc.

Del-Orden is the tour de force as to why Carroll arguably gets it wrong with respect to the public accommodation piece and that analysis, taken from Del-Orden, goes as follows:

  1. Carroll is simply wrong when it says that ALL of the places listed in 42 U.S.C. §12181(7) our strictly physical spaces. 42 U.S.C. §12181(7)(F) specifically lists travel services among the services defined as public accommodations and travel services have never required the existence of a physical structure for the services to be utilized.
  2. Congress intended that the ADA be read broadly in light of its remedial aims and that it be construed to keep pace with changing technology. Accordingly, the term “other sales or rental establishment,” can be fairly read in today’s world dominated by e-commerce to include a commercial website and therefore, has a textual basis in the statute.
  3. Congress’s purpose in enacting the ADA was broad. That is, to remedy widespread discrimination against individuals with disabilities.
  4. Congress found physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities are precluded from doing so because of discrimination.
  5. Congress found that historically, society intended to isolate and segregate persons with disabilities, and, despite some improvement, the discrimination against individuals with disabilities continues to be a serious and pervasive social problem.
  6. After thoroughly investigating the problem, Congress concluded that there was a compelling need for a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities and to integrate them into the economic and social mainstream of American life.
  7. Congress’s purposes in adopting the ADA would be frustrated if the term public accommodation was given a narrow application where access to the vast world of Internet commerce falls outside the statute’s protection. Today, few areas are more integral to the economic and social mainstream of American life than Internet websites.
  8. Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering.
  9. A House Committee Report specifically stated that the types of accommodation and services provided to individuals with disabilities under all titles of the bill should keep pace with the rapidly changing technology of the times.
  10. Limiting title III’s scope to brick-and-mortar venues would be inconsistent with Congress’s intention that the ADA keep pace with rapidly changing technology of the times. Such a holding renders title III effectively impotent to broad swaths of social and economic life. That would be a result contrary to the broad remedial purpose of the ADA, which has been described as a milestone on the path to a more decent, tolerant, progressive society.
  11. Congress need not perpetually refresh and update legislation where a broad but textually fair construction achieves the statute’s explicit aims, which is the providing of a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Accordingly, the ADA must be read, like other broadly worded statutes, in a way reflecting an intentional effort to give the flexibility necessary to forestall obsolescence.



Thoughts and Takeaways:

  1. Del-Orden also has a couple of other points well worth mentioning. First, it also adopted the gateway theory. In particular, it noted that the ADA prohibits an owner or operator of such a place from discriminating in the provision of the goods or services of that place of public accommodation. It is “of’ and not “at” or “in” that is the critical distinction. The two terms simply do not mean the same thing and to suggest otherwise does not make much sense. There is no indication that Congress intended such unorthodoxy. Further, it makes little sense to limit title III’s goal to discrimination in the provision of goods or services literally consumed in a place of public accommodation.
  2. Del-Orden also says that when it comes to mootness, the case still continues if what has not been fixed with respect to the website still denies a person with a disability meaningful access to that website.
  3. It is clear in the Fourth Circuit that testers have standing. What is not clear is whether the tester must also be capable of using the premises or the website. On that, there may be some room for argument with respect to the Northwest Federal Credit Union. Of course, different story if the plaintiff is someone eligible for the Northwest Federal Credit Union.
  4. It is absolutely true that Congress did not factor the Internet into the ADA when it was amended. It is possible that was unintentional or it is possible the votes were not there. The lack of the Internet being added to the ADA when the ADA was amended is the best argument against places of public accommodation being Internet only sites. On the other hand, you do have the congressional report that says the ADA is meant to evolve with technology. You also have the fact that the Internet has come to dominate society and that the ADA is very much about integration of people with disabilities into mainstream society. In today’s world that would be a very difficult thing to do if the Internet is left outside of the equation. Further, there are many good policy reasons, discussed above, why the ADA should be construed broadly so as to allow Internet only sites or sites that are gateways to brick-and-mortar stores to be considered a place of public accommodation.
  5. If you are a trade association or a credit union and your website is not accessible, Carroll may give you some flexibility as to cutting down on the number of people that might have standing to sue you. Keep in mind, all you are doing is cutting down on the number of people likely to sue because this case would not prevent a person who could be a member and who cannot access the website from suing under title III of the ADA. Also, this is just one court, the Eastern District of Virginia, and may not be persuasive in other courts. Finally, there is the argument that testers do have standing to sue under the ADA just as they do under the Fair Housing Act.
  6. Predicting the Supreme Court is impossible (a case like this will definitely make it to the Supreme Court someday), but if I were a plaintiff, I would take my chances with respect to tester standing and the Internet being a place of public accommodation. As discussed and mentioned numerous times before, persons with disabilities have fared very well at the Supreme Court outside of the employment context (speaking of which, the plaintiffs in Sevorson have requested cert.). It isn’t clear to me whether in the unusual fact pattern of Northwest Federal Credit Union whether the tester counter argument will prevail. Even so, all it would take would be for a person with a disability who is eligible for that particular website’s services to sue in order to get around that problem. Considering that this federal credit union focuses on the CIA and that a person in the CIA could get injured, it seems only a matter of time before someone who could be a member of this website will sue because he or she could not meaningfully access the website. So, failing to fix the website probably only delays the inevitable.
  7. In light of ¶ 6 and the Fourth Circuit becoming more progressive toward persons with disabilities, an appeal might be in order. Also, as we discussed here, the Department of Justice has recently written that it is very receptive to Internet only sites being considered places of public accommodations.
  8. It is always better to design websites with accessibility in mind before they go live, rather than do it later. Consider having your website tested by persons with disabilities. Also, make sure the website is meaningfully accessible to persons with multiple disabilities.