Want to stay current on e–commerce law? Sign up for Email Newsletter.
U.S. Appeals Courts Finds Websites not Places of Public accommodation Under Disability Legislation
Under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 ("ADA"), a privately operated "place of public accommodation" must be made accessible to disabled individuals. With respect to the Internet, Websites can be made accessible to the visually impaired through the use of a screen reader, a software program that converts graphics and text on a monitor into electronic speech that is audible through the computer's speakers. The plaintiff in this case who has a visual impairment and relies on screen readers to access Websites, sued the Southwest Airlines Company ("Southwest") because its Website Southwest.com was not formatted for use by screen readers. The plaintiff claimed that as a result, he and other visually impaired Internet users could not take advantage of the beneficial services and information on the Southwest site.
The plaintiff sought a declaration in the District Court that Southwest.com violates various provisions of the ADA and an order to make the Website accessible to the blind. Southwest brought a successful motion to dismiss the action for failure to state a claim. In its reasons, the District Court held (1) that Southwest.com was not a "place of public accommodation" and was therefore not covered under the ADA, and (2) that the plaintiff failed to establish some connection between the Website and a physical location as required under Title III. The plaintiff appealed to the 11th Circuit Court of Appeals.
The main issue on appeal was whether Southwest.com was itself a place of public accommodation. However, the Court of Appeals did not assess the merits of the case on this basis as the plaintiff raised an entirely new issue on appeal, arguing instead that Southwest Airlines as a whole is a place of public accommodation since it operates as a "travel service" and further, "that there is sufficient 'nexus' between [Southwest's] physical 'facilities' and their off site internet use to prohibit discrimination." Therefore, the Court of Appeals had to address whether it could address the nexus argument on appeal.
Although in general the Court of Appeals has the jurisdiction to consider an issue not raised in the District Court, it will only do so in extreme circumstances, none of which applied to the new issue raised by the plaintiff in this appeal. First, the issue to be decided was not purely a question of law but one of mixed fact and law. Since airplanes and accompanying terminals are exempted under the ADA, whether Southwest owns and operates anything outside of the air travel exemption would require a "meticulously calibrated factual analysis" that the District Court did not have the benefit of assessing in the first instance. Second, the plaintiff had every opportunity to raise the nexus theory before the District Court. Third, the Court of Appeals found that there was no "interest of substantial justice at stake" and fourth, that the nexus argument was not one "where the proper resolution is beyond any doubt." Finally, the Court of Appeals concluded that although the issue was of substantial public interest, the special exemption in the ADA given to airlines but not to other forms of public transportation would make any ruling inapplicable to any future cases other than to challenges of airline Websites. Ultimately, the appeal was dismissed and the District Court's decision that Websites are not places of public accommodation was allowed to stand.
For copy of the decision (Court of Appeal), visit: