No BB IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ACCESS NOW, INC. AND ROBERT GUMSON, Plaintiffs/Appellants,

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1 No BB IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ACCESS NOW, INC. AND ROBERT GUMSON, Plaintiffs/Appellants, v. SOUTHWEST AIRLINES CO., Defendant/Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AND THE CHAMBER OF COMMERCE OF THE UNITED STATES AS AMICI CURIAE SUPPORTING DEFENDANT-APPELLEE AND IN SUPPORT OF AFFIRMANCE STEPHEN A. BOKAT ANN ELIZABETH REESMAN ELLEN DUNHAM BRYANT KATHERINE Y.K. CHEUNG NATIONAL CHAMBER Counsel of Record LITIGATION CENTER McGUINESS NORRIS 1615 H Street, N.W. & WILLIAMS, LLP Washington, DC Fifteenth Street, N.W. (202) Suite 1200 Washington, DC Attorneys for Amicus Curiae (202) The Chamber of Commerce of the United States April 16, 2003 Attorneys for Amicus Curiae Equal Employment Advisory Council

2 Access Now, Inc. v. Southwest Airlines Co. Case No BB CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Amici Curiae Equal Employment Advisory Council and The Chamber of Commerce of the United States pursuant to Fed. R. App. P and 11th Cir. R , hereby certify that the following persons or entities may have an interest in the outcome of the litigation: 1. Access Now, Inc. 2. American Airlines, Inc. 3. American Association of People With Disabilities 4. American Council of the Blind 5. American Foundation for the Blind 6. Bandstra, The Honorable Ted. E., United States Magistrate Judge 7. Bazelon Center for Mental Health Law 8. Behar, Howard R. 9. Behar, Howard R., P.A. 10. Boalt Hall School of Law 11. Bokat, Stephen A. 12. Bryant, Ellen Dunham 13. Buhr, Cindy 14. Carlton Fields, P.A. 15. Chamber of Commerce of the United States, The C-1 of 3

3 Access Now, Inc. v. Southwest Airlines Co. Case No BB 16. Cheung, Katherine Y.K. 17. Dardarian, Linda M. 18. Deitz, Matthew 19. Deitz, The Law Offices of Matthew W., P.L. 20. Disability Rights Advocates 21. Disability Rights Education and Defense Fund 22. Equal Employment Advisory Council 23. Estevez, Anne 24. Feingold, Elaine B. 25. Feingold, Elaine B., Law offices of 26. Goldstein, Demchak, Baller, Borgen & Dardarian 27. Gumson, Robert 28. Konecky, Joshua 29. Lisitzky, Sharon A. 30. McGuiness Norris & Williams, LLP 31. Morgan, Lewis & Bockius, LLC 32. Mulligan, Deirdre 33. National Association of Protection and Advocacy Systems 34. National Association of the Deaf 35. National Chamber Litigation Center 36. National Federation of the Blind C-2 of 3

4 Access Now, Inc. v. Southwest Airlines Co. Case No BB 37. Pappas, Gary M. 38. Rasco Reininger Perez & Esquenazi, P.L. 39. Reesman, Ann Elizabeth 40. Reininger, Steven R. 41. Resnick, Edward 42. Resnick, Phyllis 43. Schimkat, K. Renee 44. Schwartzman, Emmet J. 45. Seitz, The Honorable Patricia A., United States District Court Judge 46. Samuelson Law, Technology & Public Policy Clinic 47. Southwest Airlines Co. 48. State Street Bank & Trust 49. University of California at Berkeley 50. Walbolt, Sylvia H. 51. Yearick, Garth T. C-3 of 3

5 No BB Access Now, Inc. and Robert Gumson v. Southwest Airlines Co. CORPORATE DISCLOSURE STATEMENT BY AMICI CURIAE EQUAL EMPLOYMENT ADVISORY COUNCIL AND THE CHAMBER OF COMMERCE OF THE UNITED STATES PURSUANT TO CIRCUIT RULE Pursuant to Fed. R. App. P. Rules 26.1 and 29(c), and 11th Cir. Rules , 27(a)(9) and 29-1, amici curiae Equal Employment Advisory Council and The Chamber of Commerce of the United States provide the following corporate disclosure statement: 1. The Equal Employment Advisory Council and The Chamber of Commerce of the United States have no parent corporations and no subsidiary corporations. 2. No publicly held company owns 10% or more stock in the Equal Employment Advisory Council or The Chamber of Commerce of the United States.

6 Respectfully submitted: Stephen A. Bokat Ann Elizabeth Reesman Ellen Dunham Bryant Katherine Y.K. Cheung NATIONAL CHAMBER Counsel of Record LITIGATION CENTER McGUINESS NORRIS 1615 H Street, N.W. & WILLIAMS, LLP Washington, DC Fifteenth Street, N.W. (202) Suite 1200 Washington, DC (202) April 16, 2003

7 TABLE OF CONTENTS TABLE OF CITATIONS...iv INTEREST OF THE AMICI CURIAE...1 STATEMENT OF THE ISSUES...3 STATEMENT OF THE CASE...3 SUMMARY OF ARGUMENT...5 ARGUMENT...7 I. THE PLAIN AND UNAMBIGUOUS LANGUAGE OF THE ADA AND JUSTICE DEPARTMENT REGULATIONS MAKE IT CLEAR THAT TITLE III OF THE ADA DOES NOT COVER COMPANY WEBSITES...7 A. A Company Website Is Neither A Public Accommodation Nor A Place Of Public Accommodation Under The Plain Meaning Of Title III And Applicable Regulations The plain language of Title III and applicable regulations make clear that the law applies only to physical locations Title II of the Civil Rights Act of 1964 further supports limiting Title III s prohibitions to physical places...12 i

8 B. Title III Does Not Require A Business That Is Otherwise A Public Accommodation To Make Its Website Accessible To Individuals With Disabilities Title III s accessibility requirement applies only to a place of public accommodation, not to all aspects of the public accommodation Title III does not require a place of public accommodation to make all of its goods and services accessible to individuals with disabilities in exactly the same manner as they are available to others...16 II. EXTENDING TITLE III OF THE ADA TO COVER INTERNET WEBSITES WOULD TURN VIRTUALLY EVERY BUSINESS INTO A PUBLIC ACCOMMODATION, THEREBY SUBJECTING ALL METHODS OF CORPORATE COMMUNICATION TO TITLE III...23 A. Extending Title III To Cover Company Internet Websites Would Turn Virtually Every Business Into A Public Accommodation...23 ii

9 B. Every Way That A Business Communicates With The Public Would Be Subject To The Public Accommodations Provision Under The Appellants Interpretation Of The Law...28 CONCLUSION...32 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iii

10 TABLE OF CITATIONS FEDERAL CASES American Tobacco Co. v. Patterson, 456 U.S. 63 (1982)...9 Carparts Distribution Center, Inc. v. Automotive Wholesaler s Association, 37 F.3d 12 (1st Cir. 1994)...10 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994)... 5, 14 Connecticut National Bank v. Germain, 503 U.S. 249 (1992)...9 Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998)...10 Gulf Life Insurance Co. v. Arnold, 809 F.2d 1520 (11th Cir. 1987)...9 Nesmith v. Young Men s Christian Association, 397 F.2d 96 (4th Cir. 1968)...13 *Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997).. 10, 11 *Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002)...9, 21, 22 Smith v. United States, 508 U.S. 223 (1993)...9 *Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995)... 10, 29, 30 *Torres v. AT&T Broadband, LLC, 158 F. Supp.2d 1035 (N.D. Cal. 2001)...29 Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir. 1993)...12 FEDERAL STATUTES Air Carrier Access Act, 49 U.S.C iv

11 Rehabilitation Act of 1973, 29 U.S.C. 701 et seq...12 *29 U.S.C. 794d...12 Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a U.S.C. 2000a(a) U.S.C. 2000a(b)...13 *Title III of the Americans with Disabilities Act, 42 U.S.C , 3, 4, 5 42 U.S.C U.S.C (7)... 8, U.S.C (7)(E) U.S.C (7)(F) U.S.C U.S.C (a) U.S.C (b)(1)(A)(iii) U.S.C (b)(2)(A)(iii) U.S.C (b) U.S.C (a) U.S.C (b)(2)...28 v

12 FEDERAL REGULATIONS *28 C.F.R. pt , 5 28 C.F.R. pt. 36, App. B C.F.R. pt. 36, App. B, subpart B, C.F.R. pt. 36, App. B, subpart C, C.F.R , 9 28 C.F.R (c) C.F.R (a) C.F.R LEGISLATIVE HISTORY H.R. Rep. No , pt. 2 (1990), reprinted in 1990 U.S.C.C.A.N S. Rep. No (1989)...21 MISCELLANEOUS Comments by Elizabeth K. Dorminey, Wimberly, Lawson, Steckel Nelson & Schneider, P.C., before the Committee on the Judiciary, Subcommittee on the Constitution (Feb. 9, 2000)...26 Internet Software Consortium, Internet Domain Survey (July 2002)...24 Letter from Deval L. Patrick to Senator Tom Harkin (Sept. 9, 1996)...21 Statement of Walter Olson, Senior Fellow, Manhattan Institution, before the House Judiciary Committee, Subcommittee on Courts and the Constitution (Feb. 9, 2000)...27 Susan Kuchinskas, Building a Barrier-Free Web, New Architect (Dec. 2002)...31 vi

13 Testimony of Dennis C. Hayes, before the House Subcommittee on the Constitution, (Feb. 9, 2000)...31 *Citations principally relied upon vii

14 The Equal Employment Advisory Council and The Chamber of Commerce of the United States respectfully submit this brief as amici curiae with the consent of all parties. The brief urges the Court to affirm the decision of the district court. It thus supports the position of the Defendant-Appellee, Southwest Airlines Co. INTEREST OF THE AMICI CURIAE The Equal Employment Advisory Council ( EEAC or the Council ) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes over 330 of the nation s largest private sector corporations, collectively employing over 20 million people throughout the United States. EEAC s directors and officers include many of industry s leading experts in the field of equal employment opportunity. Their combined experience gives the Council a unique depth of understanding of the practical, as well as legal, considerations relevant to the proper interpretation and application of equal employment policies and requirements. EEAC s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. The Chamber of Commerce of the United States ( the Chamber ) is

15 the world s largest business federation, representing an underlying membership of over three million businesses and organizations of every size and in every industry sector and geographical region of the country. A principal function of the Chamber is to represent the interests of its members by filing amicus briefs in cases involving issues of vital concern to the nation s business community. Defendant-Appellee Southwest Airlines Co. ( Southwest ) is an air carrier, and thus contends that its air transportation facilities, including its aircraft, ticket counters and self-service kiosks are expressly exempt from Title III of the ADA because they are regulated under the Air Carrier Access Act (ACCA), 49 U.S.C Appellee s Brief, at 7-8. The ACCA prohibits air carriers from discriminating against qualified individuals with disabilities in the provision of air transportation. 49 U.S.C In contrast, many of EEAC s and the Chamber s members operate physical locations that are open to the public, and thus are public accommodations subject to Title III of the Americans with Disabilities Act (ADA), 42 U.S.C , and applicable regulations, 28 C.F.R. pt. 36. In addition, virtually all of EEAC s and the Chamber s members operate internet web sites that offer information, and sometimes 2

16 goods and services, to the public. EEAC and the Chamber write separately because, unlike Southwest, our member companies are not explicitly excluded from Title III s requirements, and therefore have a substantial interest in the issue presented in this case, i.e., whether a company that maintains an internet website that is not accessible to individuals with disabilities is in violation of Title III. EEAC and the Chamber seek to assist this Court by highlighting the impact its decision may have beyond the immediate concerns of the parties to the case. Accordingly, this brief brings to the attention of this Court relevant matters that the parties have not raised. Because of their experience in these matters, EEAC and the Chamber are well situated to brief this Court on the concerns of the business community and the significance of this case to employers. STATEMENT OF THE ISSUES Whether the district court properly dismissed appellants claim that Southwest Airline s internet website is subject to Title III of the Americans with Disabilities Act (ADA), 42 U.S.C STATEMENT OF THE CASE Southwest Airlines offers several ways for individuals to buy tickets for airline flights, including an internet website, 3

17 R1:24-3. The company s website also allows individuals to check airline fares and schedules, book airline, hotel and car reservations, and learn about sales and promotions. Id. A blind person and an advocacy group ( appellants ) sued Southwest under Title III of the Americans with Disabilities Act (ADA), 42 U.S.C , alleging that the company s internet website, was a virtual ticket counter[] that offered goods and services that were inaccessible to people with vision impairments in violation of Title III. R1:24-3, 4. Specifically, appellants complain that the company s website lacks an alternative text format, which would allow a screen reader program to translate the contents of the visual display into synthesized speech that someone with a visual impairment could hear, and that appellants cannot fill out forms or bypass navigation bars to proceed directly to the main content of the website. R1:24-4. The district court correctly dismissed the case on the grounds that Southwest s website is not a place of public accommodation, and thus is not subject to Title III. R1:24-8,11. The court rejected appellants attempt to fit the website into the statutory definition of a public accommodation by combining select language from three separate 4

18 subsections of to create an entirely new category as a place of exhibition, display and a sales establishment. R1:24-7 ( see 42 U.S.C (7)(C), (H) and (E)). Nor could appellants show that the company s website barred them from accessing a physical, concrete place of public accommodation, such as an airline counter or travel agency, to obtain the airline s services in violation of the ADA. R1: SUMMARY OF ARGUMENT The plain and unambiguous language of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C , as well as the Justice Department s implementing regulations, 28 C.F.R. pt. 36, explicitly limit the scope of the law to certain physical places that are open to the public. Because internet websites do not satisfy the definition of a covered place of public accommodation, they are not subject to Title III s nondiscrimination requirements. The refusal of other federal courts to extend the public accommodations provision contained in Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a, to non-physical spaces further supports limiting the ADA s coverage to physical places. See, e.g., Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994). Even if a business otherwise qualifies as a public accommodation, Title III s nondiscrimination obligations apply only to the actual physical 5

19 location that is open to the public, and not to all aspects of the company. Moreover, a public accommodation need not make all of its goods and services accessible to individuals with disabilities in exactly the same manner as they are available to others. Congress did not intend Title III to mandate that individuals with disabilities receive exactly the same experience in the same manner as those without disabilities. As long as the public accommodation provides an effective alternative way for an individual with a disability to obtain the benefits of its goods or services, it has complied with Title III s legal requirements. Extending Title III to cover internet websites as appellants advocate would turn virtually every business into a public accommodation, thereby subjecting all methods of corporate communication to the ADA. If having a company website were enough to subject a company to Title III s requirements, then virtually every business would become a public accommodation. Countless private websites also would be swept up by this expansive definition. At the same time, extending Title III to cover internet websites would likely subject businesses to many more discrimination claims. Moreover, as a public accommodation, a company would have to change not only its website, but also every way that it chose to communicate with the public, 6

20 including newsletters, catalogs, print and radio advertisements, to make the contents of the communication accessible to individuals with disabilities. Such an expansive interpretation of Title III s coverage is contrary to the plain language of the law, and thus is not warranted. ARGUMENT I. THE PLAIN AND UNAMBIGUOUS LANGUAGE OF THE ADA AND JUSTICE DEPARTMENT REGULATIONS MAKE IT CLEAR THAT TITLE III OF THE ADA DOES NOT COVER COMPANY WEBSITES A. A Company Website Is Neither A Public Accommodation Nor A Place Of Public Accommodation Under The Plain Meaning Of Title III And Applicable Regulations 1. The plain language of Title III and applicable regulations make clear that the law applies only to physical locations A company website, which exists only in cyberspace, cannot itself be a place of public accommodation covered by Title III of the Americans with Disabilities Act (ADA). 42 U.S.C Section 302 of the ADA prohibits discrimination against individuals with disabilities 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. 42 U.S.C (a) 7

21 (emphasis added). Title III defines public accommodation by referring to a finite list of twelve categories of businesses that offer goods and services to the public. 42 U.S.C (7). Each of the twelve categories is described by itemizing a few examples, followed by a more general statement that illustrates the scope of the category, e.g., a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment, 42 U.S.C (7)(E), and a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment, 42 U.S.C (7)(F). The pertinent regulation issued by the Attorney General, 42 U.S.C (b), defines a place of public accommodation as a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the [twelve categories set forth in 42 U.S.C (7)]. 28 C.F.R (emphasis added). The same regulation defines a facility, in turn, as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, 8

22 property, structure, or equipment is located. Id. It is well-settled that, when construing statutory provisions, courts must look first to the plain meaning of the statutory language. See, e.g., American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982); Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 n.6 (11th Cir. 2002). For, as the Supreme Court has stated repeatedly, the courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Connecticut National Bank v. Germain, 503 U.S. 249, (1992). That means courts should give terms in a statute their plain and ordinary meaning. See American Tobacco Co., 456 U.S. at 68; Gulf Life Insurance Co. v. Arnold, 809 F.2d 1520, 1522 (11th Cir. 1987). In interpreting the language of a statute, courts should look at the entire statutory scheme for clarification and contextual reference, not parse out one word or one provision in isolation. Smith v. United States, 508 U.S. 223, (1993). Unless a statute s wording is unclear, a court should not even pause to consider arguments for a different interpretation based on legislative history or purpose. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete. Connecticut National Bank, 503 U.S. at (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). 9

23 Several federal courts have held that the plain language of Title III prevents extending its prohibitions beyond physical places of public accommodation. The Sixth Circuit, for example, held in Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995), that a television broadcast of a football game did not involve a place of public accommodation. The Sixth Circuit rejected the plaintiffs argument that the prohibitions of Title III are not solely limited to places of public accommodation [as] contraven[ing] the plain language of the statute. Id. at 583. See also Ford v. Schering-Plough Corp., 145 F.3d 601, (3d Cir. 1998) (plain meaning of term public accommodation refers to a physical place); Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1011 (6th Cir. 1997) (employee benefit plan was not a good offered by a place of public accommodation where plan was not available to the public through defendant insurer s offices). The First Circuit s contrary conclusion in Carparts Distribution Center, Inc. v. Automotive Wholesaler s Association, 37 F.3d 12 (1st Cir. 1994), that Title III extends to non-physical places goes against the plain language of the statute. As the Sixth Circuit explained in Parker, [T]he First Circuit disregarded the statutory canon of construction, noscitur a sociis... Black s Law Dictionary defines the term as: It is known from its associates. The meaning of a word is or may be known for the accompanying 10

24 words. Under the doctrine of noscitur a sociis, the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it. Parker, 121 F.3d at 1014 (internal citations omitted). After examining the plain statutory language listing the twelve categories of public accommodations, the Sixth Circuit concluded that all twelve must be read in connection with a physical location. The clear connotation of the words in 12181(7) is that a public accommodation is a physical place. Every term listed in 12181(7) and subsection (F) is a physical place open to public access... Office of an accountant or lawyer, insurance office, and professional office of a healthcare provider, in the context of the other terms listed, suggest a physical place where services may be obtained and nothing more. To interpret these terms as permitting a place of public accommodation to constitute something other than a physical place is to ignore the text of the statute and the principle of noscitur a sociis. Id. The plain language of Title III and the applicable regulations thus make it clear that the statute applies only to physical locations, and thus excludes internet websites. Congress had ample opportunity to include the Internet within Title III s scope, but chose not to do so. In 1998, Congress amended section 508 of the Rehabilitation Act of to require federal agencies to make 1 The Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., among other things, prohibits discrimination against individuals with disabilities in any 11

25 electronic and information technology accessible to individuals with disabilities, including websites owned or operated by the federal government. 29 U.S.C. 794d. Congress could have amended the ADA at the same time to cover private-owned websites as public accommodations. It did not. Instead, by imposing accessibility requirements solely on websites operated by the federal government, Congress deliberately chose to regulate federally owned and operated websites, but not private ones. It is not for the Court to rewrite the law to include categories that Congress expressly left out. See Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir. 1993) ( We refuse to read into [the law] what Congress has declined to include... We as judges of the U.S. Court of Appeals have only the power to interpret the law; it is the duty of the legislative branch to make the law ). Id. at Nor should this Court add to the exhaustive list of public accommodations items that Congress deliberately left out. 2. Title II of the Civil Rights Act of 1964 further supports limiting Title III s prohibitions to physical places Interpreting Title III s definition of public accommodations to include only physical facilities also is consistent with how courts have construed program, project, and activity receiving federal financial assistance or conducted by any Executive agency. 12

26 Title II of the Civil Rights Act of That law prohibits discrimination based on race, color, religion or national origin in the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation U.S.C. 2000a(a). Like the ADA s public accommodations provision in Title III, Title II sets forth an exhaustive list of three specific types of covered facilities that are virtually identical to Title III s list of categories of businesses, including inns, hotels, motels restaurants, cafeterias, retail establishments, gas stations, movie houses, theaters, concert halls, sports areas and stadiums. 42 U.S.C. 2000a(b). The essential purpose of the Act as reflected by both its language and history was to remove discrimination in places of public accommodation... with respect to all of the services rendered and operated within its physical confines.... Nesmith v. Young Men's Christian Association, 397 F.2d 96, 98 (4th Cir. 1968). Several federal circuit courts properly have rejected efforts to expand Title II s coverage beyond physical places of public accommodation. The Ninth Circuit, for example, held that an organization that refused to admit an African-American plaintiff was not a physical place of public accommodation based on the plain language of Title II in Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994). In that case, the Ninth 13

27 Circuit emphasized that Title II covers only places, lodgings, facilities and establishments open to the public, and applies to organizations only when... membership in the organization is a necessary predicate to use of the facility. When the organization is unconnected to entry into a public place or facility, the plain language of Title II makes the statute inapplicable. Id. at 756 (emphasis added). According to the Ninth Circuit, that the defendant organization may have sold books or performed some counseling services did not show that the goods or services were sold, purchased, performed or engaged in from any public facility or establishment. Id. Likewise, that a company may sell goods or services through a website (or any other means) does not make the company or the website a physical place of public accommodation under Title III. B. Title III Does Not Require A Business That Is Otherwise A Public Accommodation To Make Its Website Accessible To Individuals With Disabilities 1. Title III s accessibility requirement applies only to a place of public accommodation, not to all aspects of the public accommodation The Department of Justice (DOJ) has explained that even if a company is subject to Title III because it operates a place of public accommodation somewhere, the nondiscrimination obligations apply only to the actual physical location that is open to the public, not to the entire 14

28 company. For example, the agency said that if an agriculture company mainly sold its crops to other businesses, but also operated a roadside stand where individuals could buy fresh produce, the roadside stand would be a sales establishment covered by the ADA. DOJ went on to clarify, however, that the company s ADA obligations would extend only to the roadside stand: a company that operates a place of public accommodation is subject to this part only in the operation of that place of public accommodation... [T]he wholesale produce company that operates a road side [sic] stand would be a public accommodation only for the purposes of the operation of that stand. 28 C.F.R. pt. 36, App. B. Therefore, if a retail clothing company operates a store that is open to the public, the store is a physical place of public accommodation that must comply with Title III. But, the store s compliance with Title III does not subject all other parts or operations of the company to Title III as well. The warehouse, for example, that stocks the clothes before they are shipped to stores, would not be a place of public accommodation. Although the warehouse is a physical location, it is not open to the public. Likewise, the manufacturing plant that makes the clothes would not be a place of public accommodation. Because an internet website operated by the company s corporate headquarters is not a physical place of public accommodation (see 15

29 Argument, supra), it is not subject to Title III either. 2. Title III does not require a place of public accommodation to make all of its goods and services accessible to individuals with disabilities in exactly the same manner as they are available to others Section 302 s general nondiscrimination provision is followed by rules of construction consisting of general and specific prohibitions. 42 U.S.C As a general matter, section 302 makes it unlawful to deny an individual with a disability the opportunity to participate in or benefit from goods or services provided by a private entity. The statute generally prohibits a covered entity from providing something different to persons with disabilities, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. 42 U.S.C (b)(1)(A)(iii) (emphasis added). A company s line of business will determine the goods or services that are subject to the ADA s public accommodations provision. A company that primarily manufactures computers, but also runs retail stores that sell personal computers to individual consumers, for example, probably would be a public accommodation. The computers likely 16

30 would be the goods provided by the place of public accommodation the store. Likewise, a janitorial company that generally provides cleaning services, but also operates an office where individuals can come in to inquire about fees for the cleaning services, would be a public accommodation. The cleaning services would be the service that must be accessible to individuals with disabilities. That the computer company also sells laptops over the Internet does not turn the internet sales into a service of a place of public accommodation. Nor would the convenience of allowing customers to book appointments for cleaning crews over the Internet convert the booking process into a service of the company. In these examples, the actual computers or cleaning services the company provides are the goods or services subject to Title III s nondiscrimination requirements. The company s use of the Internet is simply one way the company may make its goods or services available to the public. As such, a company need only use a communication method that is effective in reaching individuals with disabilities to comply with Title III. Effective communication does not require a place of public accommodation to make all of the goods and services it offers available 17

31 to everyone in exactly the same manner. 28 C.F.R (c) permits a covered entity to provide a separate opportunity to an individual with a disability that is as effective as, not identical to, that provided to others. Thus, both the statutory language and implementing regulations provide explicitly that a covered entity may offer persons with disabilities something different than what it provides to other individuals without violating 302 s general nondiscrimination obligations. The DOJ regulations plainly contemplate that a reasonable modification to a covered entity s policies, practices or procedures may solve an accessibility problem. 28 C.F.R (a). For example, a company may offer certain sales and promotions to purchases made over the Internet, but not to customers who call the company s toll-free customer service number. One way to make the sales and promotions accessible to those whose impairments interfere with their ability to access the company s website is to make a reasonable modification to the company s policy. The company could comply with Title III by giving callers who identify themselves as having a disability the same discount on orders placed over the telephone. Alternatively, a public accommodation may offer an auxiliary aid or service to an individual with a disability to enable that person to 18

32 communicate effectively with the covered entity. 42 U.S.C (b)(2)(A)(iii); 28 C.F.R DOJ describes this requirement as a flexible one, which allows a public accommodation to choose among various alternatives. As long as the method chosen results in effective communication, the most advanced technology need not be used. 28 C.F.R. pt. 36, App. B, subpart C, According to DOJ, for example, the ADA does not require a restaurant to provide menus in Braille to diners with visual impairments, if waiters are available to read the menu aloud. Id. Nor does the law require a store to have Brailled price tags, if a sales clerk can tell a blind shopper how much the item costs. Id. These examples thus show that if an alternative method of delivering the information is available, such as calling a toll-free customer service operator, Title III does not require a company to alter how it generally communicates with the public. The ADA prohibits discrimination in the full and equal enjoyment of goods or services of a place of public accommodation. According to DOJ, full and equal enjoyment, however, does not mean that an individual with a disability must achieve an identical result or level of achievement as persons without a disability. For example, an exercise class cannot exclude a person who uses a wheelchair because he or she cannot do 19

33 all of the exercises and derive the same result from the class as persons without a disability. 28 C.F.R. pt. 36, App. B, subpart B, Likewise, a company website cannot block individuals with visual impairments from accessing the website because they may not be able to navigate and retrieve information from the web pages on their own. But, just as an exercise class need not develop exercises for wheelchair users to comply with Title III, the solution here is not to force a company to add extra features onto its websites to make them accessible. As long as a company provides the same information and buying options in other words, access to the goods or services it offers through effective alternative means, it has satisfied its obligation not to discriminate on the basis of disability. Even if the Internet were covered under Title III, DOJ would not require companies to change their websites so that individuals with disabilities could access them on their own. A 1996 letter written by then- DOJ Assistant Attorney General for Civil Rights Deval L. Patrick to Senator Tom Harkin identifies effective alternative ways to communicate that would satisfy Title III: 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... Instead of 20

34 providing full accessibility through the Internet directly, covered entities may also offer other alternate accessible formats, such as Braille, large print, and/or audio materials, to communicate the information contained in web pages to people with visual impairments. Letter from Deval L. Patrick to Senator Tom Harkin (Sept. 9, 1996), available at The legislative history of the ADA confirms that Congress did not intend Title III to mandate that individuals with disabilities receive exactly the same experience in the same manner as those without disabilities. As the House Committee on Education and Labor Report explains, the phrase [f]ull and equal enjoyment does not encompass the notion that persons with disabilities must achieve the identical result or level of achievement of nondisabled persons, but does mean that persons with disabilities must be afforded equal opportunity to obtain the same result. H.R. Rep. No , pt. 2, at 101 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 384; see also S. Rep. No , at 60 (1989). Thus, this is the opposite case from Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002), in which a group of individuals with hearing or mobility impairments alleged that a telephone selection process that was inaccessible to them was a barrier that prevented their physical entry to a television studio in violation of Title III of the ADA. 21

35 In Rendon, the only way for an individual to enter the studio as a contestant was to answer correctly a series of questions on a recorded message by pressing the appropriate keys on their telephone keypads to qualify for a random drawing. Id. at The plaintiffs could not hear the questions or move their fingers fast enough to record their answers by pressing the right numbers on their telephone key pads. Id. at The television studio conceded that it was a public accommodation, that the telephone contest tended to screen out many individuals with disabilities, and that the opportunity to be a contestant on the game show was a privilege or advantage of the studio. Id. at Therefore, this Court held that the plaintiffs had stated a valid claim by alleging that the contest was an intangible barrier that deprived them of competing for the privilege of appearing as a contestant on a program held at a public accommodation. Id. at In contrast to Rendon, when a company uses a website as one of several means of offering its products or services to the public, the website does not operate as a barrier that completely prevents someone with a disability from using the company s products or services. 2 As long as 2 Of course, a business that exists only in cyberspace cannot be a physical place of public accommodation anyway under the statutory definition, and 22

36 companies use other ways to convey the same information about their products or services, including sales and promotions, to individuals with disabilities, they have complied with Title III. Providing the option of calling a toll-free telephone number to hear the information orally communicated to them, for example, would satisfy a company s Title III s obligation to make its goods and services accessible to individuals with visual disabilities. II. EXTENDING TITLE III OF THE ADA TO COVER INTERNET WEBSITES WOULD TURN VIRTUALLY EVERY BUSINESS INTO A PUBLIC ACCOMMODATION, THEREBY SUBJECTING ALL METHODS OF CORPORATE COMMUNICATION TO TITLE III A. Extending Title III To Cover Company Internet Websites Would Turn Virtually Every Business Into A Public Accommodation There are over 112 million websites in the United States that have affiliated themselves with a commercial enterprise, a network, or an organization by choosing a.com,.net, or.org ending to their domain name, according to a July 2002 survey conducted by the Internet Software Consortium. 3 Based on this affiliation, most, if not all, of these websites presumably are sponsored by businesses or have ties to businesses. thus does not run afoul of Title III by providing its services or products solely through the Internet. 3 Internet Software Consortium, Internet Domain Survey (July 2002), available at 23

37 Appellants argue that Southwest is a public accommodation because it operates a travel service by providing information about travel options and allowing individuals to make reservations and book tickets for travel. In fact, quoting Southwest s website, appellants go so far as to characterize the company as operating in the customer service business.... Id. at 14. By offering this service to the public through an internet website, it is subject to Title III s legal requirements, according to appellants. Appellant s Brief, at Appellants argue that a public accommodation includes an entity that provides services, even though a person need not physically enter an actual concrete structure. See id. at 15. This expansive interpretation of a service provided by a company would sweep even companies whose websites do not sell products to individuals under Title III. An industrial manufacturer, for example, that has no physical stores and does not accept orders through the Internet, but allows business customers to track the status of their orders on its website is performing a service for the customer by providing information about the order. This service arguably would convert the manufacturer to a public accommodation under the Appellant s view. Likewise, an agriculture company that sells its produce only to other businesses, but uses its internet website to advertise its low prices would be subject to Title III. 24

38 Extending Title III in this manner to cover every business that sells goods or services to the public through an internet website would force virtually all 112 million websites to bring their websites into compliance. Because Title III covers all public accommodations whose operations affect commerce, 42 U.S.C (7), websites sponsored by businesses ranging in size and assets from multinational corporations to sole proprietorships would be covered under the Appellant s argument. A local bodega that allowed one customer to reserve groceries for pick-up over its internet website would be subject to the same standards as a nationwide chain of grocery stores from which customers regularly order supplies for home delivery through the Internet. Moreover, private individuals may create personal websites that affect commerce, thereby subjecting themselves to Title III under the Appellant s theory. Individuals may agree to allow third parties to put banner advertisements or links on their personal websites in exchange for hosting the web page without charge or for a nominal fee. Because the links may take a user to another website where the user may purchase merchandise or services from the third party, the private website now affect[s] commerce. Under Appellant s definition of public accommodation, even these personal websites would have to comply with Title III s accessibility requirements. 25

39 Subjecting private websites to the public accommodations provision, however, makes no sense. In a February 2000 hearing before the U.S. House of Representative s Committee on the Judiciary, Subcommittee on the Constitution, one panelist explained: [p]rivate sites that offer merchandise are comparable to the magazines and catalogs that most of us receive by the bushel through the mail; indeed, many print catalogs urge shoppers to place orders over the web. No one has successfully argued that catalogs or magazines are public accommodations and should be made available in Braille or audio recordings, or not at all. Comments by Elizabeth K. Dorminey; Wimberly, Lawson, Steckel Nelson & Schneider, P.C., before the Committee on the Judiciary, Subcommittee on the Constitution (Feb. 9, 2000), at 4, available at Another panelist outlined the adverse consequences of requiring all websites to be accessible under the ADA as follows: * Hundreds of millions of existing pages would be torn down. Some of these would eventually be put back up after being made compliant. Countless others never would. * The posting of new pages, by the tens of millions, would screech to a near-halt.... * Amateur publishing, as by the owner of a small business or a community group that relied on volunteers, would become more of a legal hazard

40 * Many widely used and highly useful features on websites would be compromised in functionality or simply dispensed with for reasons of cost, delay, or cumbersomeness.... Statement of Walter Olson, Senior Fellow, Manhattan Institution, before the House Judiciary Committee, Subcommittee on Courts and the Constitution (Feb. 9, 2000), at 3, available at Moreover, extending Title III to cover company websites would likely subject businesses to many more discrimination claims. If it is easy pickings to walk down a town s main shopping street and find stores that you can hit with an ADA suit over their physical facilities, then it is even easier to browse the web and find websites that are arguably out of ADA compliance. In fact you could undoubtedly set up a robot to visit the sites for you and report back on their noncompliant status... [Y]ou could then proceed to file web-accessibility complaints by the bushel basket... [I]t is an obvious temptation for someone to start doing this kind of thing once the idea of lawsuits over web accessibility becomes a little more familiar. Id. at 4. Although Title III does not entitle successful plaintiffs to recover damages for violations, companies may be liable for injunctive relief, including making costly adjustments to their websites to make them accessible. 42 U.S.C (a). If the Attorney General files suit against a company for violating Title III, the court also may award money damages and assess a civil penalty against the violator of up to $100,000, in addition 27

41 to injunctive relief. Id. at 12188(b)(2). In addition, the time and cost of defending even a meritless claim may be prohibitively expensive for some businesses, leading them to refrain from having a website. B. Every Way That A Business Communicates With The Public Would Be Subject To The Public Accommodations Provision Under The Appellants Interpretation Of The Law Companies communicate with the public in many different ways, including aural communication devices, such as the telephone and radio announcements, visual displays, such as television commercials and storefront window displays, and written materials, such as company newsletters, catalogs, newspaper advertisements, and billboards. Moreover, corporate communications may concern not only merchandise or services provided by the company, but also may contain social messages and public service announcements. A billboard advertisement that proclaims that Company XYZ supports U.S. troops overseas is a communication to the public. Appellants essentially contend that if a company is a public accommodation, then every method it uses to distribute information, goods and services, such as a telephone, a facsimile machine, or the Internet should be subject to the ADA. Appellant s Brief, at 17. That would mean every time a company sponsors a billboard or newspaper advertisement or sends 28

42 out a marketing brochure, it would have to make sure that the contents of the advertisement or brochure also is communicated in Brailled text and as an audio recording. Title III has not been interpreted to cover these more traditional types of corporate communications because they are not physical places. In Torres v. AT&T Broadband, LLC, 158 F. Supp.2d 1035 (N.D. Cal. 2001), the district court dismissed a claim under Title III against a digital cable service provider that its channel menu was not accessible to a plaintiff with a visual impairment. The court held that the digital cable system was not a place of public accommodation, and therefore was not covered by Title III. The defendants digital cable system cannot be considered a facility, because in no way does viewing the system s images require the plaintiff to gain access to any actual physical public place... The plaintiff does not have to travel to some physical place, open to the public, in order to experience the benefits of the defendants digital cable system. He simply turns on his television set and has automatic access to the sounds and images provided by the defendants service. Id. at 1038 (citation omitted). The Torres court also rejected the plaintiff s argument that the cable system was covered by Title III because the system s equipment was a facility. Id.; see also Stoutenborough v. National Football League, Inc., 59 F.3d 580, (6th Cir. 1995) (televised broadcast of football game was not a service of a place of public accommodation ). 29

43 Logic dictates that courts should subject all ways that companies communicate with the public to the same standard for Title III purposes. There is no reason to single out the Internet for heightened regulation, as the appellants contend. Instead, this Court should treat the Internet the same way under Title III as courts have treated traditional print and media devices used by companies to communicate. Like a digital cable system or a company newsletter sent to one s home, the Internet does not require a user to enter a physical building or structure, open to the public, to participate. Therefore, since print and media devices are not covered by Title III, this Court should affirm the district court s ruling that a company website also is not subject to Title III s legal requirements. Moreover, forcing companies to modify every way they communicate with the public would be both time-consuming and costly. Although appellants complain that Southwest s website is not accessible to those with visual impairments, Title III is not limited to this group. In order to comply with the law, a company would have to make its website accessible to individuals with all different types of disabilities, including those with hearing impairments, mobility issues, mental conditions and cognitive problems. The problem with applying the ADA wholesale to the Internet is that [a]ttempting to define how accessibility should work for the visually- 30