Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations (ANPRM)

ii. Web accessibility under the ADA

The Internet as it is known today did not exist when Congress enacted the ADA and, therefore, neither the ADA nor the regulations the Department promulgated under the ADA specifically address access to websites. But the statute´s broad and expansive nondiscrimination mandate reaches goods and services provided by covered entities on websites over the Internet. Title III of the ADA provides that "[n]o 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." 42 U.S.C. 12182(a). Title III of the ADA and its corresponding regulations define a "place of public accommodation" as a facility whose operations affect commerce and that falls within at least one of the following 12 categories:

(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(6) 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;

(7) A terminal, depot, or other station used for specified public transportation;

(8) A museum, library, gallery, or other place of public display or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. 12181(7); 28 CFR36.104. Congress contemplated that the Department would apply the statute in a manner that evolved over time, and it delegated authority to the Attorney General to promulgate regulations to carry out the Act´s broad mandate. See H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 108 (1990); 42 U.S.C. 12186(b). Consistent with this approach, the Department stated in the preamble to the original 1991 ADA regulations that the regulations should be interpreted to keep pace with developing technologies. 28 CFR part 36, app. B.

Section 12182 of title III provides that no person "who owns, leases (or leases to), or operates a place of public accommodation" may discriminate "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." 42 U.S.C. 12182(a) (emphasis added). Similarly, title II provides that qualified individuals with disabilities shall not be excluded from "participation in or be denied the benefits of the services, programs, or activities of a public entity." 42 U.S.C. 12132 (emphasis added). The plain language of these statutory provisions applies to discrimination in offering the goods and services "of" a place of public accommodation or the services, programs, and activities "of" a public entity, rather than being limited to those goods and services provided "at" or "in" a place of public accommodation or facility of a public entity. See National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) (finding in a website-access case that "[t]o limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute"); Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002) (finding that discrimination did not have to occur on-site in order to violate the ADA); see also Carparts Distribution Ctr., 37 F.3d 12 (concluding that title III is not limited to provision of goods and services provided in physical structures, but also covers access to goods and services offered by a place of public accommodation through other mediums, such as telephone or mail). But see Access Now, Inc. v.Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002)(finding a website is only covered if it affects access to a physical place of public accommodation); See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir. 2000) (requiring some connection between the goods or services complained of and an actual physical place); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (finding no nexus between challenged insurance policy and services offered to the public from insurance office). Instead, the ADA mandate for "full and equal enjoyment" requires nondiscrimination by a place of public accommodation in the offering of all its goods and services, including those offered via websites.