Suit Over Airlines' Web Sites Tests Bounds of ADA

Matthew Haggman
Miami  Daily Business Review 10-07-2002

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.

Source: http://www.law.com/jsp/article.jsp?id=1032128683422


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