April 24, 2017

April 24, 2017

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Ninth Circuit Holds That ADA Is Applicable Only to “Actual, Physical Place”

The decision in Earll v. eBay finds that a website business not connected to any physical place is not a “place of public accommodation” for purposes of Title III of the ADA.

In a decision of significant importance to all businesses that engage in Internet commerce, in Earll v. eBay, the US Court of Appeals for the Ninth Circuit held that eBay.com, a website not connected to any physical place, is not a “place of public accommodation” subject to the accessibility requirements of Title III of the Americans with Disabilities Act (ADA). The decision is welcome news for web-based companies. An individual with a hearing impairment sued eBay Inc.  and alleged that an eBay voice-based verification process prevented her from registering as a seller, in violation of the ADA. Although the Ninth Circuit’s decision is groundbreaking for Internet-only companies, it builds on prior cases that interpreted the ADA to apply only to “actual, physical place[s].” The same court reached a similar conclusion on the same day in Cullen v. Netflix, a case concerning closed-captioning for online video content.

Federal district courts in other circuits have decided the question differently, which may cause a split between circuits. Ultimately, this issue may be headed for Supreme Court review. In an example of a contrary view, last month, a District of Vermont federal judge held that the web-only business Scribd is subject to suit under Title III of the ADA because its digital library subscription services are alleged to not be accessible to people with vision impairments (National Federation of the Blind v. Scribd).

In related activity, the US Department of Justice (DOJ) is expected this summer to accelerate its role in making and enforcing rules regarding Internet accessibility with a notice of proposed rulemaking on the subject. The DOJ is widely expected to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA, as the standard required under the ADA.

Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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About this Author

Partner

Anne Marie Estevez is a partner in Morgan Lewis's Labor and Employment Practice. Ms. Estevez's practice focuses on the defense and trial of complex employment and accessibility (ADA) cases in federal and state courts, as well as on advising, training, and counseling companies on state and federal employment and accessibility laws. She is fluent in Spanish.

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Douglas Schwarz, Labor, Employment Attorney, Morgan Lewis Law Firm
Partner

Douglas T. Schwarz is a trusted advisor to and advocate for employers in all aspects of labor and employment law.  He litigates in court, arbitration, and administrative proceedings; counsels employers on human resources matters; negotiates and drafts executive employment and separation agreements; advises on labor and employment aspects of corporate transactions, both domestic and cross-border; and conducts internal investigations of employee complaints.  Doug also handles ADA Title III and state law matters involving access of persons with disabilities to public accommodations. - 

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