[thelist] Flash, usability, accessibility

[Martin Burns]

On Saturday, June 8, 2002, at 05:57  pm, the head lemur wrote:

> The Harkin Letter is the smoking gun that adds ammunition to the theory
> that
> if your business has wide doorways and grabbars your website should as
> well.

Not only "if your business has..." but "if your business is supposed to
have..."

Covered entities includes not only to a range of private enterprises in
their public face, but almost any employer large enough to justify an
intranet (ie if you have 15 employees or more)

Here's the covered entities bit from the Act:

<http://www.usdoj.gov/crt/ada/adahom1.htm>
<http://www.usdoj.gov/crt/ada/pubs/ada.txt>

"The ADA prohibits discrimination and ensures equal opportunity for
persons
with disabilities in employment, State and local government services,
public accommodations, ***commercial facilities***, and transportation.
It also
mandates the establishment of TDD/telephone relay services."
(my emphasis)

Also remember that 'public accommodations' include private entities that
offer goods and services to the public.

> http://www.usdoj.gov/crt/foia/cltr204.txt

>      Covered entities under the ADA are required to provide
> effective communication, regardless of whether they generally
> communicate through print media, audio media, or computerized
> media such as the Internet.  Covered 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.

And to support that line of argument from the DOJ's own position:
http://www.usdoj.gov/crt/briefs/hooks.htm
<=========================

I.	A COMMERCIAL BUSINESS PROVIDING SERVICES SOLELY OVER THE
INTERNET IS SUBJECT TO THE ADA'S PROHIBITION AGAINST
DISCRIMINATION ON THE BASIS OF DISABILITY

The district court concluded that because Defendant does not provide its
commercial services to its customers in a physical building, it is not
covered by Title III. Hooks II, slip op. 7. In doing so, the court
relied upon a line of cases suggesting that the "services * * * of any
place of public accommodation," 42 U.S.C. 12182(a), can only be the
services provided on the entity's physical premises and that the
statutory definition of a "public accommodation," 42 U.S.C. 12181(7),
limits the statute to entities that provide such on-site services.(3)
This restrictive interpretation of Title III is inconsistent with the
statutory language and creates an arbitrary and irrational limitation on
coverage that conflicts with the clear and important purposes of the
Act. Moreover, it is an interpretation that has been properly rejected
by a number of courts,(4) including this one. See McNeil v. Time Ins.
Co., 205 F.3d 179 (5th Cir. 2000).

A.	The Language Of The Statute Does Not Limit Title III To
Services Provided At A Company's Physical Facility

Title III prohibits discrimination on the basis of disability in the
provision of the "services * * * of any place of public accommodation."
42 U.S.C. 12182(a). In relevant part, the statute defines a "public
accommodation" as a "private entit[y]" that falls within one or more of
twelve categories, including a "place of exhibition or entertainment,"
"other service establishment," or "other place of exercise or
recreation." 42 U.S.C. 12181(7)(C), (F), (L).

This case involves allegations of discrimination in the provision of a
"service," namely computerized bridge tournaments and other
bridge-related services. OKBridge is, under any ordinary understanding
of the terms, a "service establishment," or an entity offering
"entertainment" or "recreation." It offers its services to its customers
via the internet from a place in San Diego, California (R1-46-47).(5)
Its services would, therefore, seem easily to qualify as the
"services * * * of [a] place of public accommodation." 42 U.S.C.
12182(a).

1.	The Services "Of" A Place Of Public Accommodation
Need Not Be Provided "At" The Place Of Public
Accommodation

This Court need not decide whether a web site on the internet can be a
"place" within the meaning of the statute,(6) for OKBridge has a
physical facility in San Diego, California, where it houses its
computers and personnel. The bridge tournaments it runs on its computers
are "services * * * of" that place.

The district court, however, apparently thought that the word "place" in
Section 12182(a) restricts the provision's application to services
provided on the premises of a place of public accommodation. See Hooks
II, slip op. 7. It does not. The Act covers the services "of" a place of
public accommodation, not the services "at" or "in" a place of public
accommodation. If Congress had intended to limit Title III to services
provided at a business's physical premises, it presumably would have
used the words "at" or "in" rather than "of." See Pallozzi v. Allstate
Life Ins. Co., 198 F.3d 28, 33 (1999), as amended on denial of reh'g en
banc, 204 F.3d 392 (2d Cir. 2000).

As this Court has observed, while the ADA surely has limitations in
coverage, "the language of the statute can only reasonably be
interpreted to have * * * practical, common sense boundaries." McNeil,
205 F.3d at 187. The boundary suggested by the district court is neither
practical nor supported by common sense. Most obviously, the district
court's interpretation excludes from coverage the wide, and growing,
range of services provided over the internet -- from shopping to online
banking and brokerage services to university degree courses -- at a time
when such modes of commerce are beginning to replace reliance on
physical business locations. See U.S. Dep't of Commerce, Digital Economy
2000 9-15 (June 2000). It also permits discrimination by more
traditional businesses that provide services in locations other than
their premises. For example, many businesses provide services over the
telephone or through the mail, including travel agencies, banks,
insurance companies, catalog merchants, and pharmacies. Many other
businesses provide services in the homes or offices of their customers,
such as plumbers, pizza delivery and moving companies, cleaning
services, business consulting firms, and auditors from accounting firms.
Under the district court's reading of the statute, all the above firms
would be free to refuse service to individuals with disabilities
whenever the service was offered off-site, even though Congress
specifically included such businesses as examples of covered public
accommodations in the statute. See 42 U.S.C. 12181(7)(B), (E), (F). As
the First Circuit observed, "[i]t 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." Carparts Distribution Ctr., Inc. v. Automotive
Wholesaler's Ass'n, 37 F.3d 12, 19 (1994).

Even if the district court's holding were somehow restricted to
companies that provide services solely outside the context of their
physical buildings, this would still leave a significant array of
service providers free to discriminate. For example, those selling car
insurance over the telephone would be free to hang up on blind
customers, Publisher's Clearing House could refuse to sell magazines
through the mail to people with HIV, and colleges could refuse to enroll
the deaf in their correspondence courses. Again, these are businesses
Congress clearly intended to cover. See 42 U.S.C. 12181(7)(E), (F), (J).

Defendant offers no plausible explanation of why Congress would have
wanted to draw such arbitrary boundaries in the scope of an Act intended
to "invoke the sweep of congressional authority * * * in order to
address the major areas of discrimination faced day-to-day by people
with disabilities." 42 U.S.C. 12101(b)(4). The point of the statute is
to require a company that provides a service to the public at large, to
provide that service in a non-discriminatory manner to those with
disabilities as well. See McNeil, 205 F.3d at 188. That is, the statute
protects the individuals with disabilities' "full and equal enjoyment of
the goods [and] services * * * of any place of public accommodation." 42
U.S.C. 12182(a). Being offered access to only those services of a public
accommodation that are offered on-site, when the public at large is
given access to additional services off-site, is hardly "full and equal
enjoyment" of the accommodations' services. And narrowly construing the
statute to exclude major areas of discrimination faced by people with
disabilities in their day-to-day encounters with commercial services
providers -- including services provided in a person's home, over the
telephone, through the mail, or via the internet -- is inconsistent with
Congress's clearly expressed intent.

2.	Definition Of "Public Accommodation" Is Not
Limited To Entities Providing Services At Their
Physical Premises

Thus, Section 12182(a) itself does not exclude the services of a public
accommodation offered outside the business's physical premises. Some
courts have suggested, however, that the definition of a "public
accommodation" does. These courts have concluded that the examples in
the definition are all "actual, physical places where goods or services
are open to the public, and places where the public gets those goods or
services." Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104,
1114 (9th Cir. 2000). See also Parker v. Metropolitan Life Ins. Co., 121
F.3d 1006, 1011 (6th Cir. 1997). They suggest, therefore, that Congress
intended to limit Title III to similar businesses and exclude all
others. Weyer, 198 F.3d at 1114 ("[T]his context suggests that some
connection between the good or service complained of and an actual
physical place is required."); Parker, 121 F.3d at 1011.

This argument is unconvincing. As discussed above, there is no
reasonable explanation of why Congress would have intended to draw such
a boundary or why it would have chosen such an indirect way of
expressing its intent to do so. The language of the definition contains
no explicit limitation supporting this interpretation. In fact, the
catchall phrases Congress used, such as "other service establishment,"
are plainly broad enough to encompass establishments that provide
services in their clients' homes, over the telephone, or through the
internet.

An on-site limitation cannot be inferred indirectly from the specific
examples either. Congress included in that list numerous businesses that
traditionally provide services off-site. For example, department stores
receive catalog orders through the mail or over the telephone. They
deliver products from their stores to customers through the mail or by
special delivery of certain items, such as appliances. Plumbing
companies only provide services at a customer's home or office. Many
lawyers provide their most significant services in a courtroom, rather
than in their offices. A senior citizen center will often perform its
services outside the physical center itself. For example, the drive
clients to doctors' appointments, deliver meals, lead field trips, etc.
A travel service ordinarily conducts its business over the telephone and
through the mail. Yet Congress clearly intended to cover the services of
a "sales * * * establishment" like a department store, a "service * * *
establishment" like a plumbing company, the "office of an accountant or
lawyer," a "senior citizen center," and a "travel agency." 42 U.S.C.
12181(7)(E), (F), (K).

Some courts have suggested, however, that "[p]ursuant to the doctrine of
noscitur a sociis, * * * [any ambiguous terms] should be interpreted by
reference to the accompanying words of the statute to avoid the giving
of unintended breadth to the Acts of Congress." Ford v. Schering-Plough
Corp., 145 F.3d 601, 614 (3d Cir. 1998), cert. denied, 525 U.S. 1093
(1999) (citation and quotation marks omitted). See also Weyer, 198 F.3d
at 1114. They reason that because the definition refers to some
businesses that provide on-site services, the definition must be
interpreted to cover only entities that are so limited. Ford, 145 F.3d
at 614; Weyer, 198 F.3d at 1114.

As noted above, terms like "other service establishment" are broad, but
they are not particularly ambiguous with respect to covering businesses
providing off-site services. Moreover, there is no danger that giving
the statutory language a natural reading will give "unintended breadth"
to the Act. The breadth a natural reading entails is clearly intended.
It is true that the statute often focuses on physical access to
buildings, but that is not surprising. One of the major purposes of the
Act was to require the removal of architectural barriers that prevented
many people with disabilities from gaining access to services. See,
e.g., 42 U.S.C. 12182(b)(2)(A)(iv). But the statute just as clearly
recognizes that "individuals with disabilities continually encounter
various forms of discrimination" including not only barriers to physical
access, but also other forms of exclusion and "relegation to lesser
services, programs, activities, benefits, jobs, or other opportunities."
42 U.S.C. 12101(a)(5) (emphasis added); see also H.R. Rep. No. 485, Pt.
2, 101st Cong., 2d Sess. 35-36 (1990) ("lack of physical access to
facilities" was only one of several "the major areas of discrimination
that need to be addressed"); H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d
Sess. 54 (1990) ("It is not sufficient to only make facilities
accessible and usable; this title prohibits, as well, discrimination in
the provision of programs and activities conducted by the public
accommodation.").(7)

For that reason, the definition of "public accommodation" is
intentionally broad. The House Report explains that the list of examples
in the definition of "public accommodations" is not meant to be a
limitation on the more general catchall categories:


A person alleging discrimination does not have to prove that the entity
being charged with discrimination is similar to the examples listed in
the definition. Rather, the person must show that the entity falls
within the overall category. For example, it is not necessary to show
that a jewelry store is like a clothing store. It is sufficient that the
jewelry store sells items to the public.

H.R. Rep. No. 485, Pt. 3, supra, at 54. The Senate Report similarly
states that


within each of these categories, the legislation only lists a few
examples and then, in most cases, adds the phrase "other similar"
entities. The Committee intends that the "other similar" terminology
should be construed liberally consistent with the intent of the
legislation that people with disabilities should have equal access to
the array of establishments that are available to others who do not
currently have disabilities.

S. Rep. No. 116, 101st Cong., 1st Sess. 59 (1989).

As this Court has explained in an analogous context:


[a]lthough we recognize that ejusdem generis is an old and accepted rule
of statutory construction, we do not believe that it compels us to
accord words and phrases embodied in the statute a definition or
interpretation different from their common and ordinary meaning; or that
the rule requires us to interpret the statute in such a narrow fashion
as to defeat what we conceive to be its obvious and dominating general
purpose.

Miller v. Amusement Enters. Inc., 394 F.2d 342, 350 (5th Cir. 1968).(8)
Similarly, in this case, any tension between the list of examples
Congress used and the ordinary meaning of the broad catchall phrases it
included should be resolved in light of Congress's "obvious and
dominating general purpose" and in favor of including public
accommodations that provide services outside of their physical premises.

3.	The Absence Of Specific Mention Of Services
Provided Over The Internet Does Not Restrict The
Statute's Coverage

The absence in the statute of any specific mention of web sites or the
internet is not a reason to exclude services provided by this medium.
When Congress enacted the statute, the World Wide Web had not yet been
invented and commercial traffic on the nascent internet was prohibited.
See Pub. L. No. 101-336, 104 Stat. 327 (ADA passed on July 26, 1990);
PBS, Life on the Internet Timeline (visited June 30, 2000)
<www.pbs.org/internet/ timeline/timeline-txt.html> (first web browser
invented, and first commercial use of the internet permitted, in 1991).
That Congress did not specifically envision the application of Title III
to services provided over the internet does not mean that such services
are excluded from coverage. See, e.g., Pennsylvania Dep't of Corrections
v. Yeskey, 524 U.S. 206, 211 (1998) (ADA applies to prisons, even if
"Congress did not envision that the ADA would be applied to state
prisoners") (citation and internal punctuation omitted); Dean v.
Ashling, 409 F.2d 754, 755 (5th Cir. 1969) (Title II of the Civil Rights
Act of 1964 applies to rental space in a trailer park, even though
"[n]othing in the legislative history suggests that anyone considered
trailer parks").

The language of the statute is broad enough to cover services provided
over this new medium(9) and courts are not reluctant to apply old words
to new technology in a way that is consistent with modern usage and
legislative intent. The Supreme Court has, for example, applied the
First Amendment's protection of free "speech" and "the press" to
electronic communication over the internet. See Reno v. ACLU, 521 U.S.
844 (1997).

In another example, the Fourth Amendment's protection of the "right of
the people to be secure in their persons, houses, papers, and effects,"
U.S. Const. Amend. IV, has been applied to electronic documents and
communications. At one time, the Supreme Court concluded that the
language of this Amendment could not reach searches of new electronic
media, such as telephone communications, for reasons very similar to
those urged by Defendant in this case:


The amendment itself shows that the search is to be of material
things -- the person, the house, his papers, or his effects. The
description of the warrant necessary to make the proceeding lawful is
that it must specify the place to be search and the person or things to
be seized. * * * * * The language of the Amendment cannot be extended
and expanded to include telephone wires, reaching to the whole world
from the defendant's house or office.

Olmstead v. United States, 277 U.S. 438, 464-465 (1928) (emphasis in
original). However, the Supreme Court later rejected this restrictive
interpretation and applied the Fourth Amendment to searches of
electronic media, acknowledging the need to avoid restrictive
interpretations that leave new technologies outside the protection of
pre-existing law:


To read the Constitution more narrowly is to ignore the vital role that
the public telephone has come to play in private communication. * * * *
[O]nce it is recognized that the Fourth Amendment protects people -- and
not simply "areas" -- against unreasonable searches and seizures it
becomes clear that the reach of that Amendment cannot turn upon the
presence or absence of a physical intrusion into any given enclosure.

Katz v. United States, 389 U.S. 347, 352-353 (1967). Just as the Fourth
Amendment's textual focus on physical intrusions does not exclude the
Constitution's application to electronic media, neither does a similar
textual focus in the ADA on services provided at a physical place of
business exclude Title III from application to commercial services
provided over the internet.

B.	This Court Has Already Rejected The View That Title III
Is Limited To Services Performed At A Physical Place

The district court's decision in this case not only ignores the plain
language of the statute and the obvious purposes of Congress, but also
conflicts with this Court's recent decision in McNeil v. Time Insurance
Co., 205 F.3d 179 (5th Cir. 2000). In McNeil, this Court reviewed the
decision of a district court that had concluded, like the district court
in this case, "that Title III of that Act only applied to physical use
of the services of a place of public accommodation." Id. at 182. The
district court had granted summary judgment against a plaintiff who
claimed that a cap on AIDS coverage in his deceased son's insurance
policy violated Title III. The district court held that the defendant's
"provision of insurance did not constitute a 'public accommodation'
under the ADA" because it did not involve physical access," siding with
cases like Weyer, Parker, and Ford. Ibid.

Had this Court agreed with the district court and sided with the
Circuits inferring a "physical place" requirement in Title III, this
Court would have affirmed the dismissal of the plaintiff's claim on the
ground that the insurance policy was not a "service * * * of [a] place
of public accommodation." Instead, this Court interpreted and applied
Title III to the case, concluding that


[t]he "good" in this case is the insurance policy that Time offered to
the members of the Texas Optometric Association. To establish a Title
III violation, Mr. McNeil is required to demonstrate that Time denied
his son access to that good or interfered with his son's enjoyment of it.

Id. at 188. Thus, while this Court ultimately concluded that Title III
does not govern the content of insurance policies (because, as a general
matter, Title III does not "regulate the content of goods and services
that are offered," 205 F.3d at 186)(10) it nonetheless held that Title
III "assures that the disabled have access to all goods and services
offered by the business," even when that business offers goods or
services, like insurance policies, that are provided outside the
company's offices. Id. at 188 (emphasis added).

In this case, this Court should similarly conclude that Title III
requires that businesses like Defendant offer non-discriminatory access
to all their services, whether they be provided in a building or over
the internet.

=========================>

Now, if the Assistant Attorney General thinks that covered entities need
to be accessible, and the DOJ thinks that covered entities need to be
accessible, who are Chris' lawyer friends who think they know better?
And do they stand to profit from defending clients against ADA actions?
If so, I believe the correct term is 'ambulance chasers'.

Here's the post that Chris couldn't find:
http://lists.evolt.org/archive/Week-of-Mon-20020527/113706.html

There is precedent for the designer to be held liable for ADA failures
(the precedent is for physical buildings, but it would be outrageously
inconsistent for it not to apply to designers of other covered
facilities). See "Legal Rights of Persons with Disabilities: An Analysis
of Federal Law" (Tucker & Goldstein, LRP Publications, ISBN: 0934753466)
for the case law.

Besides, if you advise a client that accessibility doesn't matter, and
they get pulled up over it, how long (in hours) before a writ lands on
your desk? Your ambulance chasing lawyers have their professional
indemnity insurance - do you?

So to summarise:
1) ADA applies to the Internet
2) Covered Entities under the ADA absolutely fails to exclude private
enterprises
3) The designer is also liable.


Cheers
Martin
_______________________________________________
email: martin at easyweb.co.uk             PGP ID:	0xA835CCCB
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