The Disabilities Act and a Tangled Web
Courts Divided On
Access To Websites
by Steven John Fellman
and Adam Smallow
NATO Washington Counsel
Several years ago, theatre owners held their
breath while the courts grappled with the issue of wheelchair
seating
locations in stadium-style theatres. While movie theatres
sought to accommodate wheelchair patrons in compliance
with the Americans With Disabilities Act (ADA), the language
of the legislation was vague and ambiguous on this issue.
Theatre
owners should consider reviewing their website with
counsel, and perhaps establishing a site that is
accessible to their visually impaired patrons. |
The appellate courts offered conflicting
opinions and, as a result, theatre owners spent millions
of dollars to
defend litigation and retrofit their theatres in the absence
of any clear guidelines from the Department of Justice.
Although settlements have been reached in litigation, the
courts have still offered no dispositive ruling on the
accessibility of wheelchair seating locations for disabled
patrons under the current ADA standards.
Today, yet again, the courts find themselves
divided on an issue that involves the accommodation of
disabled patrons
under the ADA. That issue involves the accessibility of
Internet websites. The application of the ADA to one of
the most popular forms of new media presents a significant
issue and neither the courts nor the Department of Justice
have provided a clear answer. As a result, theatre owners
are again faced with an ADA dilemma. Now, theatre owners
must decide what action, if any, is necessary to make their
websites accessible.
Visually impaired or blind individuals are
able to utilize the Internet through the use of “screen reader” software,
which converts graphic and textual information on the monitor
into synthesized speech users can hear through their computer
speakers. Although there are many websites that are accessible
to the visually impaired, there are still a significant
number with unlabeled graphics and other sources of data
that make it extremely difficult for the blind to access
with screen reader programs. Those sites are considered
to be inaccessible.1
The question that has arisen through litigation
is whether a website is a “place of public accommodation,” which,
under Title III of the ADA, is required to be accessible
to disabled individuals. The courts are split on this concept,
but some recent cases suggest a test that may lay the path
for future guidelines.
Some courts view a place of public accommodation
as solely a physical, tangible structure such as the four
walls of
the theatre and everything within the four walls. Other
courts have decided that a public accommodation can extend
into electronic space. However, there is a third rationale
that is, in essence, a compromise between the two extremes
and relevant to movie theatre operations.
Under the third rationale, if there is a
connection, or “nexus,” between
the functions of a website and its corresponding physical
location, such as a movie theatre, then that may qualify
the website as a part of a place of public accommodation
and subject to compliance with the accessibility requirements
of the ADA. For example, if a theatre owner’s website
contains the means, or link, to purchase movie tickets
online that the filmgoer will receive at the movie theatre
itself, either through a kiosk or the ticket counter, then
there may be a sufficient connection to classify the website
as part of a place of public accommodation. Consequently,
it will be required by the ADA to offer accessibility to
visually impaired, or other disabled, users. Even if a
website merely directs the filmgoer to a particular theatre
and showtime, that may still be enough of a “nexus” to
establish it as a place of public accommodation for purposes
of Title III of the ADA.
In a recent case – one which underscores the impending
shift towards accessible websites for the over 1.5 million
visually impaired Internet users – the National Federation
of the Blind sued AOL, claiming that websites are a place
of public accommodation and subject to the ADA. Although
the case was settled and the court did not decide the issue,
AOL agreed to make its web browsing technology accessible
to the visually impaired.
In addition to the courts and the text of
the ADA, movie theatre owners can look to the Access Board
for guidance
on how to operate a disability-friendly website. The Access
Board is an independent federal agency devoted to accessibility
for people with disabilities and publishes guidelines that
the Department of Justice must consider in its enforcement
of the ADA. Furthermore, although the current Access Board
guidelines on websites do not apply to the private sector,
Congress has expressed its intent that ADA regulations
be consistent with the Access Board’s minimum requirements.
Since the ADA does not include a definition
of an accessible website, the Access Board’s accessibility
standards for electronic and information technology, issued
under
section 508 of the Rehabilitation Act of 1973, should be
carefully considered. Section 508 requires in part that
the federal government provide its disabled employees access
to electronic technology such as the Internet and establishes
functional standards for web accessibility.
As the courts wrestle with the ambiguity
of the term “public
accommodation” as it applies to websites, and in
lieu of uniform federal guidelines that require Internet
sites to be accessible to disabled individuals, theatre
owners should consider reviewing their website with counsel,
and perhaps establishing a site that is accessible to their
visually impaired patrons.
The rapid growth of Internet technology
is constantly spurring new opportunities for motion picture
exhibitors to interact
with its consumers. Visually impaired filmgoers can be
expected to litigate to enforce their possible right
to enjoy these online opportunities to the best extent
possible
through the use of accessible websites. 
1The technical specifications for
website design that properly interfaces with screen reader
software are beyond the
scope of this article and it is advised that theatre
owners contact a computer specialist in order to make
such a determination.
