The only comment I have is I have found Southwest's web site to be fairly
accessible. In fact, since they removed the time limits and labeled the
submit button, I find it easy to buy tickets, and did so last night.
David
----- Original Message -----
From: "Kelly Pierce" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Sunday, October 13, 2002 7:28 AM
Subject: Suit Over Airlines' Web Sites Tests Bounds of ADA
> 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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