What do burgers and art supplies have in common? They are both sold on websites recently challenged by disabled plaintiffs. Blind plaintiffs have filed lawsuits alleging certain websites violate federal, state and city laws because they contain various access barriers and are not fully usable by the blind. This summer two federal courts in New York – the Southern District (Markett v. Five Guys Enterprises LLC, 17-cv-788-KBF, ECF No. 33 (July 21, 2017)) and the Eastern District (Andrews v. Blick Art Materials, LLC, , 17-cv-767-JBW, ECF No. 25 (August 1, 2017)) – found that websites selling these goods were “places of public accommodation.” The courts, therefore, refused to dismiss lawsuits by disabled individuals who requested damages and an order that the websites be changed to accommodate their disabilities.

Here is some background: Title III of the Americans with Disabilities Act (“ADA”) (and the New York State and City Human Rights Laws) prohibits discrimination 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. An example of a typical claim for an ADA violation is when a wheelchair-bound plaintiff asserts he or she is unable to gain entry to a retail store because it lacks a ramp, or he or she cannot navigate the aisles in the store because they are too narrow.

Discrimination under the ADA includes the failure to make reasonable modifications in policies, practices, or procedures necessary to afford the goods, services or accommodations to a disabled individual, unless those modifications would fundamentally alter the nature of the goods or services. Similarly, discrimination includes a failure to take the steps necessary to ensure that a disabled individual is not excluded or denied services because of the absence of auxiliary aids and services, unless taking those steps would fundamentally alter the nature of the goods or services, or result in an undue burden. In the example of the wheelchair-bound plaintiff, unless the retailer can show an undue burden or a fundamental alteration of the nature of the goods and services, it is obligated to make reasonable modifications by widening the aisles, or providing auxiliary aids and services, such as installing a ramp or lift for access to the store.  Plaintiffs in these cases can easily establish the retail store is a “place of public accommodation.” The goods and services are available at a physical facility, and there generally is no serious dispute that the retail store, restaurant, hotel, museum, etc. is a public accommodation under the ADA.

Websites are not so clear. As the court explained in Andrews v. Blick Art Materials, LLC, the ADA does not define the term “place of public accommodation,” and there is a split among the federal courts whether the statute applies only to physical structures. According to the more narrow interpretation adopted by several courts outside of New York, a disabled person is entitled to the “full and equal enjoyment” of goods and services only if they are offered at a physical location. Thus, if a business operates exclusively through the internet, without any physical location where customers interact with the business, the ADA’s mandate for accessibility does not apply.

On the other hand, several federal courts – including the Blick Art Materials and Five Guys courts in New York – have concluded that under the ADA “places of public accommodation” are not required to be physical structures. According to this view, websites of a company without any physical locations are required to comply with the ADA. The court in Blick Arts Materials reached this conclusion after an exhaustive analysis of existing precedent and statutory construction of the ADA and its purpose.

The court concluded with an observation that the ADA had improved the lives of millions of disabled Americans by reducing their tendency to become isolated and segregated from society. Further, the internet has afforded individuals greater participation in the community and engagement in commerce from the convenience of home. Thus, to conclude that a website is not a place of public accommodation under the ADA “would be a cruel irony … which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.” Andrews v. Blick Art Materials, LLC, at p. 24.

Based on Blick Art Materials and Five Guys, as well as other Second Circuit Court of Appeals and district court cases, businesses within New York, Connecticut and Vermont which do not make their websites accessible to disabled users, do so at their own risk. These cases have opened the door to the courthouse wider, and it would not be surprising to see a significant uptick in this type of litigation.