Interesting Legal Case on Airline Web Site Accessibility
 

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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.