Another Court Finds ADA Applies to Websites
The National Federation of the Blind brought suit against Scribd, the so-called Netflix for books and other documents, for failing to make its content available in any non-visual way claiming it violated the Americans with Disabilities Act (ADA). Scribd argued that the ADA only applied to physical spaces, but Vermont federal court Judge William K. Sessions III followed a similar decision by a neighboring Massachusetts court to find that
the Internet is central to every aspect of the “economic and social mainstream of American life.” PGA Tour, 532 U.S. at 675. In such a society, “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Netflix, 869 F. Supp. 2d at 200 (quoting Carparts, 37 F.3d at 20).
Excerpts from the decision are below.
NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself, and HEIDI VIENS,
SCRIBD INC., Defendant.
Case No. 2:14-cv-162
United States District Court, D. Vermont
March 19, 2015.
According to the Complaint, Scribd is a California-based digital library that operates reading subscription services on its website and on apps for mobile phones and tablets. Scribd’s customers pay a monthly fee to gain access to its collection of over forty million titles, including e-books, academic papers, legal filings, and other user-uploaded digital documents. Scribd’s digital software program is accessed over the Internet. The Plaintiffs contend that Scribd’s website and apps are inaccessible to the blind because they use an exclusively visual interface and lack any non-visual means of operation. Blind persons generally use screen reader software to convert graphical information found on websites and apps into audio or Braille formats, depending on the user’s preference. According to the Plaintiffs, because Scribd’s website and apps are not programmed to be accessible through such software, Scribd is denying blind persons access to all of the services, privileges, advantages, and accommodations that Scribd offers and is excluding them from accessing information critical to their education, employment, and community integration.
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Scribd argues that only physical places open to the public can be public accommodations. However, the Committee Reports suggest that the important quality public accommodations share is that they offer goods or services to the public, not that they offer goods or services to the public at a physical location. A person alleging discrimination does not have to prove that the entity being charged with discrimination is similar to the examples in the definition. H.R. Rep. 101- 485(III), at 54 (1990). Rather what matters is membership in one of the general categories. As an example, it is not necessary to show a jewelry store is like a clothing store but rather “it is sufficient that the jewelry store sells items to the public.” Id. Here the Report does not say something like “it is sufficient that the store sells items at a place open to the public.” See also S. Rep. 101-116, at 54 (1990) (“Similarly, although not expressly mentioned, bookstores, video stores, stationary stores, pet stores, computer stores, and other stores that offer merchandise for sale or rent are included as retail sales establishments.” (emphasis added)).
The Committee Reports also make it clear that Congress intended that the statute be responsive to changes in technology, at least with respect to available accommodations. H.R. Rep. 101-485(II), at 108 (1990) (“[T]he Committee intends that the types of accommodation and services provided to individuals with disabilities . . . should keep pace with the rapidly changing technology of the times.”). Specifically, the Report notes that an important area of concern is information exchange and although there were “still substantial barriers,” that “great strides are being made.” Id. Information exchange is exactly the service that Scribd provides. It seems likely that making websites compatible with screen reader software is the kind of advanced technology Congress was envisioning.
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The ADA was the most sweeping civil rights legislation since the Civil Rights Act of 1964. When it was enacted Congress had no conception of how the Internet would change global commerce. As Representative Nadler put it, when the ADA was enacted in 1990: [W]e were not communicating by e-mail, blog, or tweet; we were not filling virtual shopping carts with clothes, books, music, and food; we weren’t banking, renewing our driver’s licenses, paying taxes or registering for and taking classes online. Congress could not have foreseen these advances in technology. Despite Congress’ great cognitive powers, it could not have foreseen these advances in technology which are now an integral part of our daily lives. Yet Congress understood that the world around us would change and believed that the nondiscrimination mandate contained in the ADA should be broad and flexible enough to keep pace. Achieving the Promises of the Americans with Disabilities Act in the Digital Age –- Current Issues, Challenges and Opportunities: Hearing before the H. Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the House Comm. on the Judiciary, 111th Cong., 2d Sess. 111-95 (2010). Now that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access to covered entities that use it as their principal means of reaching the public would defeat the purpose of this important civil rights legislation.
Taking into account all of the relevant background information explored above, the Court finds Judge Ponsor’s reasoning in Netflix persuasive. The Internet is central to every aspect of the “economic and social mainstream of American life.” PGA Tour, 532 U.S. at 675. In such a society, “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Netflix, 869 F. Supp. 2d at 200 (quoting Carparts, 37 F.3d at 20).
The Court must therefore determine whether the services Scribd offers properly fall within any of the general categories of public accommodations listed in the statute. Construing the list of categories liberally, Plaintiffs have persuasively argued that Scribd’s services fall within at least one of the following categories: “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” a “library,” a “gallery,” or a “place of public display or collection.” Complaint ¶ 26 (citing 42 U.S.C. § 12181(7)). Therefore, the Court finds that Plaintiffs have sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation. Accordingly, Scribd’s motion to dismiss is denied.