EQUAL EMPLOYMENT ADVISORY COUNCIL

EQUAL EMPLOYMENT ADVISORY COUNCIL SUITE 400 1501 M STREET, NW WASHINGTON, DC 20005 TEL 202/629-5650 FAX 202/629-5651 Via http://www.regulations.gov Christina Galindo-Walsh, Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 1425 New York Avenue, N.W. Suite 4039 Washington, DC 20005 Re: RIN 1190 AA61, CRT Docket No. 110 Advance Notice of Proposed Rulemaking Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations Dear Ms. Galindo-Walsh: The Equal Employment Advisory Council (EEAC) is pleased to submit these comments in response to the Department of Justice s Advance Notice of Proposed Rulemaking (ANPRM) pertaining to the accessibility of web information and services by places of public accommodation. EEAC s comments focus specifically on Question 5 of the ANPRM, which seeks specific feedback on the limitations for coverage that [DOJ] is considering. We respectfully submit that the plain and unambiguous language of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. 12181-12189 explicitly limits 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. Moreover, we believe that the refusal of most 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 the ADA s coverage limitation to physical places only. 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 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

Page 2 without disabilities. As long as the public accommodation provides an effective alternative way for an individual with a disability to obtain its goods or services, it has complied with Title III s legal requirements. EEAC s Interest in the Proposed Rulemaking EEAC is a national nonprofit association of major employers formed in 1976 to promote sound approaches to the elimination of employment discrimination. EEAC s membership is comprised of 300 of the nation s largest private sector companies, collectively providing employment to more than 20 million people throughout the United States alone. EEAC s directors and officers include many of the nation s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC an unmatched depth of knowledge of the practical, as well as legal, considerations relevant to the proper interpretation of fair employment policies and practices. EEAC s members are firmly committed to the principles of equal employment opportunity. Many of EEAC s member companies own or operate physical locations that provide goods and services to the public and thus are public accommodations subject to Title III. In addition, virtually all of EEAC s members operate Internet websites that offer information, and sometimes goods and services, to the public. Accordingly, EEAC s member companies will be affected directly by the proposed rulemaking. I. Under the Plain and Unambiguous Language of the ADA, Title III Does Not Cover Company Websites 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. 12181. 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. 12182(a) (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. 12181(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. 12181(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. 12181(7)(F). Each of the twelve categories describes a physical location, i.e., a place of public accommodation. DOJ s own regulations, correctly interpreting the statute, define 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. 12181(7)]. 28 C.F.R.

Page 3 36.104 (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, property, structure, or equipment is located. Id. Notably, the recent amendments to DOJ s Title III regulations do not disturb these definitions. 75 Fed. Reg. 56,236, 56,250-51 (September 15, 2010). Thus, DOJ s own regulations continue to follow the statute consistently by establishing that a place of public accommodation must indeed be a physical place. 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, 253-54 (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). Unless a statute s wording is unclear, a court does not need to 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 254 (citation omitted). Accordingly, 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, 612-14 (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 nonphysical 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 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.

Page 4 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. Citing Parker, the Ninth Circuit reached the same conclusion: All the items on this list, however, have something in common. They are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services. The principle of noscitur a sociis requires that the term, place of public accommodation, be interpreted within the context of the accompanying words, and this context suggests that some connection between the good or service complained of and an actual physical place is required. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (footnote omitted). The plain language of Title III and the applicable DOJ regulations thus make it clear that the statute applies only to physical locations, not to incorporeal ones. Not surprisingly, then, the few courts that have addressed whether Title III covers websites have answered that question in the negative. Ruling that cyberspace is not a place, a federal trial court in Florida concluded that Southwest Airlines website was not covered by Title III because it did not involve a physical place. Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002), dismissed on other grounds, 385 F.3d 1324 (11th Cir. 2004). In 2006, a federal trial court in California denied a motion to dismiss a claim that a retail company s website violated Title III, but only to the extent that it impeded access to goods and services offered in the actual physical stores. The court dismissed that portion of the claim dealing solely with information and services that were not connected to retail locations. National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006). Congress has had ample opportunity to include the Internet within Title III s scope, but has chosen not to do so. In 1998, for example, Congress amended section 508 of the

Page 5 Rehabilitation Act of 1973 1 to require federal agencies to make 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 privately 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 a court or a regulatory agency to rewrite the law to include categories that Congress expressly has omitted. See Welsh v. Boy Scouts of America, 993 F.2d 1267, 1270 (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 ). Accordingly, we respectfully submit that DOJ lacks the statutory authority to add to the exhaustive list of public accommodations items that Congress deliberately left out, i.e., websites. Title II of the Civil Rights Act of 1964 Further Supports Limiting Title III s Coverage to Physical Places Interpreting Title III s definition of public accommodations to include only physical facilities also is consistent with how courts have construed Title II of the Civil Rights Act of 1964 (Title II). 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... 42 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 arenas 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) (citation and footnote omitted) (emphasis added). 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 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 1 The Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., among other things, prohibits discrimination against individuals with disabilities in any program, project, and activity receiving federal financial assistance or conducted by any Executive agency.

Page 6 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. II. Title III Does Not Require a Business That Is Otherwise a Public Accommodation To Make Its Website Accessible to Individuals With Disabilities DOJ has taken the position 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 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, Subpart A, 36.104 (July 26, 1991). 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, it is not subject to Title III either. 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. 12182. 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 different goods or services 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. 12182(b)(1)(A)(iii) (emphasis added).

Page 7 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, would be a public accommodation with respect to its retail stores. The computers would be the goods provided by the place of public accommodation the store. Likewise, a janitorial company that generally provides cleaning services to the public, but also operates an office where individuals can come in to inquire about fees for the cleaning services, probably would be a public accommodation with respect to that office, which would have to meet physical accessibility requirements. The cleaning services would be the service that must be accessible to individuals with disabilities, and the service could not refuse individuals with disabilities as clients because of their 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 provide an alternative 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 to everyone in exactly the same manner. 28 C.F.R. 36.202(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 access that is different from 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. 36.302(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 these 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 providing an exception that allows customers with disabilities to receive the Internet discount even though they place their orders 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 communicate effectively with the covered entity. 42 U.S.C. 12182(b)(2)(A)(iii); 28 C.F.R. 36.303. 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

Page 8 advanced technology need not be used. 28 C.F.R. pt. 36, App. B, Subpart C, 36.303. 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 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 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, 36.201. 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. The legislative history of the ADA also 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. 101-485, pt. 2, at 101 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 384; see also S. Rep. No. 101-116, at 60 (1989). Thus, Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002), does not support the theory that Title III covers websites. There, 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. 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 1280. 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 1280-81. 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 1283. Therefore, the court held that the plaintiffs had stated a valid claim by alleging that the contest was an intangible barrier that deprived them of competing

Page 9 for the privilege of appearing as a contestant on a program held at a public accommodation. Id. at 1283. 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 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. The ANPRM purports to set out DOJ s legal foundation for Title III coverage of websites coverage by citing to those few cases holding that discrimination did not have to occur at a physical place to be covered by Title III, but fails to acknowledge that most of these cases nevertheless required some nexus to a physical location for coverage. Moreover, the Department also claims that its position all along has been that websites are covered by Title III, with or without a connection to an actual physical location, although we respectfully submit that the Department has actually reversed its prior position. DOJ s position in the past has been that Title III would not require companies to change their websites so that individuals with disabilities could access them on their own. In 1996, in response to a constituent inquiry from the ADA s chief Senate sponsor Tom Harkin as to whether web pages have to be accessible to someone with a visual impairment, then-doj Assistant Attorney General for Civil Rights Deval L. Patrick responded that effective alternative ways to communicate would satisfy Title III: Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well... Instead of 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 http://www.justice.gov/crt/foia/readingroom/frequent_requests/ada_coreletter/cltr204.txt. Similarly, DOJ s June 2003 guidance for state and local governments regarding accessibility of websites states unequivocally that: An agency with an inaccessible website may also meet its legal obligations by providing an alternative accessible way for citizens to use the programs or services, such as a staffed telephone information line. Accessibility of State and Local 2 Of course, a business that exists only in cyberspace cannot be a physical place of public accommodation anyway under the statutory definition, and thus does not run afoul of Title III by providing its services or products solely through the Internet.

Page 10 Government Websites to People with Disabilities (DOJ, June 2003), available at http://www.ada.gov/websites2.htm. III. The NPRM, If DOJ Decides To Move Forward, Should Confirm That Websites, Standing Alone, Are Not Covered by Title III We applaud the Department s statement of its intention to regulate only governmental entities and public accommodations covered by the ADA that provide goods, services, programs, or activities to the public via Websites on the Internet, that is, the Web sites of entities that provide goods or services that fall within the 12 categories of public accommodations, as defined by the statute and regulations. 75 Fed. Reg. 43,465 (July 26, 2010). In order to remain within the statutory confines of Title III, however, DOJ should set forth in any NPRM and final regulation that only businesses with brick and mortar locations are subject to Title III, and then only to the extent that they provide goods and services to the public. With respect to websites maintained by these businesses, any final regulations should establish that alternative forms of access that make the goods or services offered by the business (and not necessarily the particular goods or services provided by the website) available to individuals with disabilities are lawful under Title III, e.g.: retailers with both brick and mortar stores and websites; utilities that allow customers to order services and pay bills online; and hotels, restaurants, and transportation services that allow customers to make reservations online. Further, any NPRM and final regulation should establish that businesses that offer goods, services or information to the public via the Internet but have no physical location to which the public has access are not covered by Title III, e.g., retailers that sell exclusively online. Similarly, they should make clear businesses that do not offer goods and services over the Internet, but merely use websites to advertise and provide information are not covered by Title III. Conclusion EEAC is grateful to the Department of Justice for providing us with the opportunity to submit comments on the ANPRM. We would welcome further opportunity to discuss our views with agency officials at any time. Respectfully submitted, Jeffrey A. Norris President