The JSH Reporter JSH Reporter - Fall 2017 | Page 12
ACCESSIBILITY CLAIMS ARTICLE
012
WEBSITES:
THE NEW FRONTIER FOR
ACCESSIBILITY CLAIMS
AUTHOR: David Potts
EMAIL: [email protected]
The number of cases alleging violations of Title III of the
Americans With Disabilities Act has fallen dramatically in 2017.
Under Title III of the ADA, “[n]o 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.”
Typically, this means that places of public accommodation
must ensure that they are accessible by disabled individuals
and comply with federal regulations that set the appropriate
standards.
Over the past year, courts have come down hard against serial
Plaintiffs bringing Title III claims. Advocates for Individuals with
Disabilities-the organization that brought more than 1,000
lawsuits against Arizona businesses alleging violations of the
ADA’s parking regulations last year–has been largely thwarted,
with all of their Arizona cases dismissed. The legislature
amended the Arizonans With Disabilities Act to require that a
business be given notice and 30 days to fix any violations before
a lawsuit can be filed. And similar “tester” Plaintiffs have largely
ceased to bring lawsuits in Arizona based on physical barriers to
access.
BIO: jshfirm.com/DavidCPotts
The new frontier is the Internet. In the Ninth Circuit, the Internet
is not itself a “place of public accommodation,” so it is not
automatically subject to Title III of the ADA. For example, in
2011, a federal court in San Jose rejected a Plaintiff’s claim that
Facebook was a “place of public accommodation” under the
ADA. See Young v. Facebook, Inc., 790 F. Supp. 2d 1110 (N.D. Cal.
2011). A similar claim against Netflix failed a year later. See Cullen
v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012). However,
where there is a “nexus” between a website and a place of public
accommodation, a website can be subject to the ADA. See, e.g.,
National Federation of the Blind v. Target Corp., 452 F. Supp. 2d
946 (N.D. Cal. 2006).
As a result, where a website has that requisite “nexus” to a
physical accommodation, Plaintiffs are beginning to bring Title III
claims. Theresa Brooke, a serial Plaintiff who also brings lawsuits
against hotels that lack pool lifts, brought eight new ADA Title III
suits in Arizona in July 2017 alone, all alleging that out-of-state
hotels violated the ADA.