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Ninth Circuit Holds that Businesses Providing Services via the Internet Are Not “Public Accommodations” Subject to the ADA

All business owners should familiarize themselves with Title III of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12181 et seq., which imposes a range of requirements on private businesses that operate as “public accommodations” as part of its prohibition on discrimination against people with disabilities. This might include, to provide just one example, a requirement that a business provide a ramp allowing wheelchair access to its facility. The question of whether Title III applies to businesses that do not maintain a physical location open to the public is not a new one, but the rapid expansion of internet-based services has given the question more urgency. The Ninth Circuit Court of Appeals recently ruled that Title III does not apply to companies whose services are solely web-based, but at least one federal circuit court has reached a different conclusion.

Title III prohibits discrimination on the basis of disability in “public accommodations.” 42 U.S.C. § 12182(a). The statute defines “public accommodation” by providing a lengthy, but non-exhaustive, list of private businesses or organizations, including hotels, restaurants, theaters, retail stores, laundromats and other service establishments, parks, and schools. 42 U.S.C. § 12181(7). Courts have reached different conclusions regarding whether Title III limits the definition of “public accommodation” to businesses with “brick and mortar” locations.

Two Ninth Circuit decisions affirmed lower court rulings that Title III does not apply to businesses that provide services exclusively online. In Cullen v. Netflix, Inc., No. 13-15092 slip op. (9th Cir., Apr. 1, 2015), the plaintiff sought to certify a class action under Title III and California law, on the grounds that the defendant discriminated against hearing-impaired customers by failing to provide captioning in its video-streaming service. The plaintiff in Earll v. eBay, Inc., No. 13-15134 slip op. (9th Cir., Apr. 1, 2015), raised similar claims against the auction website, alleging that the company unlawfully discriminated against her by requiring identity verification by telephone with no accommodation for the hearing-impaired.

In both cases, the Ninth Circuit held that the defendants are not “public accommodations” within the meaning of Title III, based on Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000). That case dealt with a long-term disability insurance policy, offered through the plaintiff’s employment. The plaintiff argued that the policy violated Title III by providing benefits for physical disabilities until age 65, while providing benefits for mental disabilities for a maximum of 24 months. The court held that the insurance plan is not a “place of public accommodation” under Title III. Id. at 1115. This decision followed similar decisions from the Third Circuit and the Sixth Circuit.

The First Circuit has allowed Title III cases against internet-based businesses to proceed, based on Carparts Distr. Ctr. v. Automotive Wholesaler’s Ass’n, 37 F.3d 12 (1st Cir. 1994). In Nat’l Ass’n of the Deaf v. Netflix, 869 F.Supp.2d 196 (D. Mass. 2012), a district court ruled in the plaintiff’s favor in a case involving captioning in online streaming videos. Another court ruled in favor of a plaintiff claiming that an online document service violated Title III by failing to provide accommodations for blind users. Nat’l Fed. of the Blind v. Scribd, No. 2:13-cv-00162, op. and order (D. Vt., Mar. 19, 2015).

Cirrus Law PC has represented businesses and business owners in the Bay Area for almost 40 years. To schedule an initial confidential consultation with an experienced and skilled business advocate, contact us today online or at (925) 463-1073.

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