Equal Access to the
World Wide Web

Daniel Atkins and Jody Tate, Disabilities Law Program

As reported in Joseph Shapiro’s seminal book No Pity, in the 1980’s before the Americans with Disabilities Act, people with disabilities were denied participation in the most basic aspects of community life. Two-thirds of people with disabilities had not been to a movie theater in the previous year, many because they could not get in the front door, others because they could not see the screen from behind the back row. Twenty-two percent had not eaten in a restaurant, and thirteen percent did not shop in a grocery store. Perhaps most disturbingly, 59% of people with disabilities indicated that they were afraid to leave their homes because of mistreatment.

Upon passage of the Americans with Disabilities Act in 1990, President Bush dramatically declared “let the shameful wall of exclusion finally come tumbling down.” For the first time a federal law was mandating that if private businesses (“Public Accommodations”) were open to the public, they needed to be open and accessible to everyone, including people with disabilities. Specifically, Title III of the ADA requires that:

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 by any person who owns, leases (or leases to), or operates a place of public accommodation.

Thirteen years later, many walls of exclusion have in fact collapsed, not from decay, but from tireless advocacy. New buildings and offices are constructed with accessible features. Existing facilities that predate the ADA are modified when it is readily achievable. However, the next frontier in the battle against the exclusion of people with disabilities may involve cyberspace–are sites on the World Wide Web places of public accommodation?

The importance of this question is obvious. The internet has the potential to provide people with disabilities access to an array of commercial activity that was virtually unfathomable when the ADA was drafted. The internet offers people with mobility, visual, or other impairments access to businesses, education, and information from their own homes and offices. For people with disabilities, the internet challenges the very construct of disability. From their computers with assistive technology and accessible websites, many people with disabilities are no longer disabled. However, what if a website is inaccessible to a person with a particular sensory impairment, such as sight? Robert Gumson faced precisely that problem.

Mr. Gumson is blind and uses a screen reader to search the internet. Interested in making a flight reservation with Southwest Airlines, he was unable to use their site because it was not accessible to people with visual impairments. Southwest only offered him access through a telephone reservationist, or a ticketing location. Is this “full and equal enjoyment of goods or services”? Clearly, people with disabilities are not provided as complete an array of services by Southwest Airlines as people without disabilities. Internet commerce is burgeoning at an ever increasing rate because people with and without disabilities sometimes prefer the convenience, anonymity, autonomy, and special prices offered through online purchases.

Mr. Gumson, with the help of Access Now, a disabilities rights organization based in Florida, has sued Southwest Airlines. Access Now has also sued American Airlines on the same grounds. The airlines will argue that the internet is not a place of public accommodation as defined by the ADA. They will contend that bricks and mortar are an essential quality of a public accommodation.

One wonders why the airlines are fighting so hard. Making a website accessible is not an expensive nor difficult endeavor. Certainly it is not as difficult for the airlines as turning a profit evidently is. To date, no federal appellate court has addressed whether internet sites are places of public accommodation. However, in 1999, Barnes and Noble entered into a court approved settlement requiring it to make its website accessible to people with disabilities.

When the ADA was drafted in the late 1980's, the internet was not nearly as ubiquitous as it is today. Congress probably did not contemplate the role of the World Wide Web at the time. The question is, then, will courts honor the spirit and intent of the Act and interpret its language expansively? For sure, many federal courts will do so. However, it remains to be seen, if and when this issue goes to the U.S. Supreme Court, whether the Act will be given the liberal reading it warrants. If it is not, people with disabilities will go back to the future–with the walls of exclusion erected once again.