Retailers' duties to accommodate disabled customers' communication via website and other remote methods
With the growth of on-line retailing come issues of accessibility for the disabled. For example, must a brick and mortar retailer that also sells products on a website make its website accessible to blind customers? If that retailer fields on-line help calls via its website, must it nevertheless use a Telecommunications Device for the Deaf (“TDD”) to enable deaf customers to communicate via type? A number of cases and regulations have begun to define retailers’ responsibilities in this challenging area.
Title III of the Americans with Disabilities Act (“ADA”) provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 42 U.S.C. § 12182(a). Title III defines discrimination to include “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii).
In implementing regulations, the Department of Justice has stated explicitly that public accommodations “shall” furnish appropriate auxiliary aids and services where necessary to ensure “effective communication” with individuals with disabilities. 28 C.F.R. § 36.303(c). Appropriate auxiliary aids and services may include effective methods of making visually delivered materials available to individuals with visual impairments, and TDD’s for individuals with hearing impairments. § 36.303(b). Those regulations state further that an “undue burden” generally means “significant difficulty or expense.” § 36.303(a).
The most fundamental issue posed by retail websites is whether they are “places of public accommodation” and therefore covered by Title III. Only two reported cases have addressed this issue. Although both cases used similar reasoning, one case held an airline website, southwest.com, is not a place of public accommodation, Access Now v. Southwest Airlines, 227 F. Supp.2d 1312 (S.D. Fla. 2002), whereas the other case held a retailer’s website, target.com, is a place of public accommodation. National Federal of the Blind v. Target Corp., 452 F. Supp.2d 946 (N.D. Cal. 2006).
In Southwest, the plaintiffs alleged that the goods and services Southwest offers at its “virtual ticket counters” on southwest.com are inaccessible to blind persons and therefore discriminatory in violation of Title III. The court granted Southwest’s motion to dismiss for failure to state a claim. Southwest.com provides consumers with the means to check airline fares and schedules, book airline, hotel, and car reservations, and stay informed of Southwest’s sales and promotions. The court cited binding precedent holding only physical structures may be places of public accommodation. The court acknowledged the plaintiffs may have been able to state a claim if they had alleged their inability to access goods and services on southwest.com led to their inability to access goods and services offered by a physical structure—what the court called a “nexus” between denial of access to goods and services via the website and denial of access to goods and services via physical structure. The court did not opine what allegations, in its view, might have stated a claim. The court noted that aircraft are explicitly exempt from Title III, and the plaintiffs did not argue that Southwest’s website impedes their access to aircraft, so evidently the court did not feel it needed to opine what allegations may have sufficed.
However, the Target case did address what allegations suffice to state a claim in this context. In Target, the plaintiff sued on behalf of a purported nationwide class alleging that target.com is not accessible to blind individuals. By visiting target.com, customers can purchase many of the items available in Target stores. Target.com also allows a customer to perform functions related to Target stores, such as accessing information on store locations and hours, refilling a prescription or ordering photo prints for pick-up at a store, and printing coupons to redeem at a store. In its first reported decision, the court denied Target’s motion to dismiss for failure to state a claim. 452 F. Supp.2d 946. Using the same “nexus” language and analysis as the Southwest court, the Target court held that, unlike the plaintiffs in Southwest, the plaintiff in Target alleged his inability to access goods and services on target.com caused him to be unable to access goods and services offered at Target’s physical stores. The court held this allegation stated a violation of Title III because it established a nexus between lack of access to the website and lack of access to goods and services offered by the physical structures.
Under Southwest and Target, a retailer’s website will be deemed a place of public accommodation if and only if denial of access to goods and services offered on the website leads to denial of access to goods and services offered at the retailer’s physical structure. Where the retailer offers goods and services only via the internet, therefore, it seems fairly clear that the website will not be considered a place of public accommodation. However, for retailers who also offer goods and services via physical structures, a subsequent opinion in the Target case offers some guidance on the type of non-access that will satisfy the nexus requirement.
In that decision, the court granted Target’s motion for summary judgment on the ground the plaintiff failed to show that his inability to access target.com renders him unable to access the goods and services of Target stores. 582 F. Supp. 2d 1185 (N.D. Cal. 2007). The plaintiff testified he frequently pre-shops on several stores’ websites before shopping at the physical stores, and that he incurs extra cost and time at the stores if he is unable to pre-shop on the website. The court held, however, that the plaintiff did not establish how his difficulties with the target.com website have impeded his access to the goods and services in the store. He stated only that he has been unable to use target.com for the purpose of pre-shopping and that he has been unable to use the weekly advertisements on target.com for use in the stores. The only specific incident he described involved his purchase of towels for his dorm room. While he was unable to access information about the towels online, he was ultimately successful in purchasing them in the store after hiring a driver and coordinating a trip with a companion. The plaintiff did not testify that hiring the driver and arranging for the companion were necessary only because he could not pre-shop. Based on the plaintiff’s specific testimony, and the deficiencies thereof, the court held as a matter of law the plaintiff failed to establish a sufficient nexus between non-access to the website and non-access to the physical stores. (In subsequent proceedings, a different individual was permitted to substitute as lead plaintiff, a nationwide class was certified, and the parties ultimately reached a voluntary settlement, including the payment of substantial attorney’s fees to plaintiff’s counsel.)
Assuming a retailer’s website is deemed a place of public accommodation because of a nexus to goods or services offered via physical structures, the issue then becomes whether auxiliary aides or services must be used to accommodate individuals with disabilities. For blind consumers, the most common aid is embedding or altering a website’s code to permit the use of computer assistant software. Comment: The Americans with Disabilities Act and Internet Accessibility for the Blind, 25 J. Marshall J. Computer & Info. L. 543 (Summer, 2008). A Web site’s code must be written in so-called “alternative text” in order to be accessible to the blind. Alternative text is invisible text, embedded beneath Web sites’ graphics, that describes a Web site’s contents. Screen reader software “reads” the alternative text and gives an audio explanation of the Web site’s text and graphics. Navigation links can also be screen reader compatible, allowing blind users to navigate through Web sites by using a keyboard instead of a mouse. Computer assistant software includes voice-dictation software, voice navigation software, and magnification software that assists the visually disabled in navigating through Web sites’ text and graphics. Id.
Under the statute and regulations, whether a retailer is required to use some or all of these will depend on whether they amount to an undue burden. According to the DOJ, this is designed to be a “flexible” standard that permits disabled individuals equal access to goods and services without significant difficulty or expense and without changing the mix of goods or services. For example, a restaurant must ensure that an employee is available to explain a menu to a blind customer, and a museum offering audio tours must provide alternative formats of the tour that a deaf patron could use. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544, * 34 (July 26, 1991). However, while a bookstore must ensure that it communicates with its customers in formats that accommodate the disabled, a bookstore is not required to stock books in Braille. Id.
In the absence of case law providing clear guidance, retailers need to weigh the risk of a finding of non-compliance against the cost of providing these auxiliary devices and the good will engendered by voluntary measures. The Southwest opinion’s dicta on this issue is probably sound advice. That court wrote, “Given the number of visually impaired persons who utilize the Internet for commerce, and the significant amount of business that Southwest obtains through its Internet website, it is unfortunate that the parties have not cooperated to develop a creative solution that benefits both parties and which avoids the costs and polarizing effects of litigation. It is especially surprising that Southwest, a company which prides itself on its consumer relations, has not voluntarily seized the opportunity to employ all available technologies to expand accessibility to its website for visually impaired customers who would be an added source of revenue.” 227 F. Supp.2d at 1321 n.13.
For deaf consumers wishing to communicate with a retailer, the duty to accommodate has been explicitly limited by the pertinent regulations—whether or not the retailer also offers the ability to communicate via website. As noted above, telephone communication for the deaf involves communicating by text rather than by voice, typically using a TDD. A basic TDD consists of a keyboard, a display screen, and a modem, which operates over standard telephone lines. If a deaf individual is communicating with another TDD user, both users send and receive text. If a deaf individual is communicating with a hearing individual who doesn't have a TDD, they will use the Telecommunication Relay Service (“TRS”), which is a national service in which relay operators provide two-way translation between spoken word and typed text.
Under the regulations, “a public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, a TDD for the use of an individual who has impaired hearing or a communication disorder.” 28 C.F.R. § 36.303(d). However, the regulation “does not require a public accommodation to use a TDD for receiving or making telephone calls incident to its operations.” Id. Therefore, for the typical retailer who simply offers goods and services via both physical structures and websites, there is no duty to provide deaf consumers with the use of a TDD. Nevertheless, retailers should prepare its employees fielding calls from the public to accept a call from the TRS. There are often delays in those calls because of the time it takes for the relay operator to communicate with the hearing impaired person using the TDD. The employee fielding the call should be trained to consider whether the delay is caused by the use of the NRS, rather than a dropped call.
In the coming years, more authority will likely provide guidance regarding retailers’ duties to accommodate disabled consumers communicating via websites or other remote means. In the meantime, retailers should balance the cost of providing accommodations against the risk of costly lawsuits alleging unequal access and the good will engendered by voluntary measures.
Jackson Lewis’ Disability, Leave and Health Management Practice Group members have extensive experience in these areas. Please speak to any Jackson Lewis attorney about getting in contact with lawyers in this practice group.
