Last week the US District Court for the Eastern Borough of New York ruled in the Winegard v. Newsday LLC issued a ruling that could finally get to the heart of the site’s accessibility issue so it could be tackled straight from the second circuit, providing non-stationary businesses with unexpected relief by dismissing a serial plaintiff’s alleged class action lawsuit which alleges that a newspaper’s failure to provide closed captioning for online videos for the deaf or hard of hearing is against Title III of the Americans with Disabilities Act (“Title III” or “ADA”).
In dismissing the action, the Court of Justice took a stricter, stricter constructivist approach in analyzing the applicability of Title III to websites, stating that Title III does not apply to the website in question as it is not in itself a “place of public accommodation” (“PPA”). Delving into the text and history of the ADA, the court found that the ADA already defined “public accommodation” as private establishments such as hotels, restaurants, stadiums, grocery stores, and gyms, and further 49 of the 50 examples were “indisputably physical Places”. “, Indicating that PPAs are limited to” actual, physical locations. ” The court further stated that if Congress intended for the term to encompass more than one physical PPA, it would have, but in the 31 years since it passed the ADA, it has never done so. Based on the recent decision of the Eleventh Circuit in the case of Gil v. Winn-Dixie, the court ruled that the question of whether a website itself qualifies as a PPA “is a matter of Congress to be resolved”. On this basis, the Court applied what other jurisdictions have termed the ‘nexus theory’ by stating that in order for a website to have accessibility obligations under Title III it ‘must offer the same’ goods and services’ as the stationary business the company”. and the plaintiff must invoke a link between the website and the stationary location.
In making its decision, the court was aware that other judges in the District Court in the Second District who had previously dealt with the issue of website accessibility had taken a broader view of the law, focusing on the intent of the ADA as a comprehensive civil rights law. However, the court distinguished the facts at hand from those in Pallozzi v. Allstate Life Insurance Co, 198 F. 3d 28 (2nd Cir. 1999) in which the Second Circuit extended the scope of Title III beyond a physical PPA to include an insurance policy. The court rejected the view that this decision “compel”[led] a result that contradicts the above “because the plaintiff never alleged that Newsday operates a” public, physical place where newspapers – or other goods or services are sold “. In Pallozzi, on the other hand, the insurance policy in question was linked to a physical insurance office. As a result, the court ruled that the Newsday website was not a Title III ADA PPA.
By using this narrower approach, the court arguably created an explicit split which could finally give impetus to the Second Court to deal directly with the applicability of Title III to websites. For now, that ruling should provide additional ammunition to businesses whose websites are not clearly linked to a PPA to fight the endless wave of website accessibility lawsuits that continue to plague the district courts in this district. However, as the court admitted, it is inconsistent with other decisions both inside and outside the Second Circuit and does not apply when there is a link between a PPA and its website.
For now, companies will have to continue to wait for a law of Congress or Department of Justice regulations to get the final guidance they have been calling for in recent years. In the meantime, the easiest way to avoid falling into a website accessibility lawsuit, including a lack of subtitling lawsuit, is by achieving substantial compliance with WCAG 2.1 Levels A and AA (such as through human audits by confirmed on both sides). Code and user perspectives).
© 2021 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XI, Number 235
Comments are closed.