III. Interpretations of “Place of Public Accommodation”

Three cases38 were instrumental to the Target court's holding that Target.com was subject to Title III in certain contexts.39 These cases, when combined with Target, illustrate a split among circuits in the interpretation and application of the place of public accommodation standard.

A. Pre-Target Decisions

1. Stoutenborough v. National Football League, Inc.

In Stoutenborough, a group of hearing impaired individuals sued the National Football League (NFL) claiming “the [NFL's] 'blackout rule,' which [prohibited] the live local broadcast of home football games . . . before game-time, [violated] the [ADA].”40 The plaintiffs stated the blackout rule discriminated against them “in a disproportionate way because they [had] no other means of accessing the football game[s] 'via telecommunication technology.'”41 For this reason, the plaintiffs claimed they were being denied the “substantially equal” access the ADA required.42 Additionally, the plaintiffs argued the services provided through the television broadcast were offered as “services, benefits, or privileges in places of public accommodation.”43

The Sixth Circuit held that the plaintiffs failed to state a claim for relief, and granted the NFL's motion to dismiss.44 Persuaded by the defendants'45 argument, the court held the blackout rule was not discriminatory because “it [applied] equally to both the hearing and hearing-impaired.”46 Since all viewers were prevented from watching a blackout game, the plaintiffs did not have a viable discrimination claim.47

Significantly, the Sixth Circuit found none of the defendants were entities to which Title III applied.48 Moreover, the plaintiffs sought a service, a televised broadcast, which in no way involved a place of public accommodation.49 The game the plaintiffs wanted to view was played in a place of public accommodation;50 however, the challenged service (i.e., the television broadcast) was not provided by the place of public accommodation. Therefore, Title III did not apply.51

2. Rendon and Access Now, Inc.

In Rendon v. Valleycrest Productions, Ltd.,52 a group of hearing and mobility impaired plaintiffs brought suit against Valleycrest Productions Limited and American Broadcasting Company (ABC). The Rendon plaintiffs, who were either hearing impaired or suffered from a condition that limited their finger mobility, claimed the defendants' telephone selection process for “Who Wants to be a Millionaire” (“Millionaire”) violated Title III because it tended to screen out disabled people.53 Specifically, the selection process required potential contestants to call a toll-free telephone number and use a telephone keypad to answer a series of pre-recorded questions.54

The district court dismissed the plaintiffs' complaint because the telephone selection process was “not conducted at a physical location.”55 For this reason, the selection process was not a place of public accommodation covered by Title III.56 Therefore, the issue on appeal in Rendon was whether Title III could be applied to a process preventing the disabled from participating in competitions held in a public accommodation.57

On appeal, the Rendon defendants asserted the screening hotline was not a public accommodation or a “physical barrier to entry erected at a public accommodation.”58 Furthermore, the hotline did not prevent the plaintiffs from gaining access to the public accommodation-the studio where the show was recorded.59 The defendants argued that, because the screening process posed no physical barrier, it could not be subject to a Title III claim.60

The court of appeals rejected the defendants' argument,61 holding that Title III also applies to “intangible barriers,” which include discriminatory procedures that restrict a disabled person's “ability to enjoy the defendant entity's goods, services and privileges.”62 Pointing to decisions from other circuits,63 the Eleventh Circuit held that the telephone selection process used by the defendants was an intangible barrier64 depriving the plaintiffs of the “opportunity to compete for the privilege of being a contestant on Millionaire,”65 which occurred at a place of public accommodation.66 The telephone screening process was an intangible barrier to a privilege offered by a place of public accommodation; thus, the process was subject to Title III.67

Access Now v. Southwest Airlines, Co. was the first judicial opinion that addressed Title III in the context of business websites.68 The plaintiffs, Access Now, Inc., a non-profit access advocacy organization for disabled individuals, and a blind individual named Robert Gumson, filed suit against Southwest Airlines (“Southwest”) for violation of Title III on the grounds that the company's website, southwest.com, made its “virtual ticket counters” inaccessible to blind people.69 The plaintiffs noted that assistive technology, which can aid blind people in navigating the Internet, is readily available through various types of computer software.70 The effectiveness of an assistive technology requires that a website be programmed to interact with the technology,71 but southwest.com and Southwest's virtual ticket counters were not programmed to be accessible to blind people who rely on assistive technologies.72 The plaintiffs claimed the denial of access deprived the blind of equal access to the airline's virtual ticket counters, which they argued were places of public accommodation.73

The Access Now court cited two reasons for dismissing the plaintiffs' complaint. First, southwest.com74 was not a place of public accommodation under Title III.75 The court pointed to the twelve listed categories of public accommodation in Title III,76 stating that the congressional intent was for the statute to apply only to “access to physical, concrete places of public accommodation.”77 Second, there was no nexus between southwest.com and a place of public accommodation.78 Because southwest.com and the virtual ticket counters were not “in any particular geographic location,” the plaintiffs could not prove a nexus between a challenged service and “a specific, physical, concrete space.”79 Thus, the Eleventh Circuit distinguished the telephone screening process in Access from Rendon because southwest.com was not a physical space under Title III.80

B. Target and the Ninth Circuit

In the Target case, Bruce Sexton, a blind man, filed suit against Target for discrimination in violation of federal and state laws.81 In their complaint, the plaintiffs claimed that because Target's website, Target.com, was inaccessible to the blind, they were “denied full and equal access to Target stores” in violation of Title III.82

The Ninth Circuitdenied Target's motion to dismiss based on the company's interpretations of Rendon, Access Now, and Stoutenborough. In its motion, Target first argued that the ADA requires actionable discrimination to occur on the premises of the public accommodation (“on-site”).83 Second, Target argued the discrimination must have the effect of denying physical entry to the public accommodation.84

In response, the Ninth Circuit first noted that Title III prohibits disability-based discrimination “'in the full and equal enjoyment of the goods, services, . . . or accommodations of any place of public accommodation.'”85 The defendant's interpretation of the statute, requiring discrimination to occur on-site or in a place of public accommodation, “contradict[ed] the plain meaning of the statute.”86 For this reason, the Ninth Circuit held discrimination need not occur on-site for the plaintiffs' claim to be viable.87

Second, the Ninth Circuit held that actionable discrimination under Title III is not limited to denial of physical access to public accommodations.88 Title III encompasses more than “mere physical access,” reaching “actions or omissions which impair a disabled person's 'full enjoyment' of services or goods of a covered accommodation.”89 If a nexus exists between a challenged service and a place of public accommodation, a claim may be actionable even when the challenged service does not prevent physical access to a public accommodation.90 Thus, the Target court found the discrimination actionable because there was a nexus between the challenged service, Target.com, and the plaintiffs' full enjoyment of the services of the public accommodation, Target's brick-and-mortar stores.91

C. How is Target Different?-Reconciling the Split

Target is the first published decision allowing a Title III claim of website inaccessibility against a private entity to proceed against a defendant.92 The Ninth Circuit previously declined to expand the meaning of a “place of public accommodation” beyond the stated categories noted in Title III-a place of public accommodation is a “physical place.”93 In Target, the defendant relied on Stoutenborough, Rendon, and Access Now to argue that a website was not an actionable place of public accommodation under Title III.94 Applying this “physical place” approach to Target, the Ninth Circuit might not have entertained a Title III claim against a website. However, the Ninth Circuit allowed Title III claims when there is “unequal access” to a public accommodation's service, if a plaintiff can prove a nexus between the service and the public accommodation.95 Thus, because the Target court did find a nexus between the services offered by a website and the public accommodation with which the website was “heavily integrated,” the plaintiffs' claim was viable.96

The Target court stated three reasons for how its decision could be reconciled with the Title III precedentsto find a nexus between Target and Target.com. First, the court found that Target.com's services were offered by Target, a place of public accommodation.97 Second, even though the challenged service did not prevent physical access to Target stores, inaccessibility to Target.com did affect equal enjoyment of services offered by Target.98 Finally, there was a connection between the challenged service, Target.com, and the Target stores.99

In Stoutenborough, there was no Title III liability because, although the game the plaintiffs wished to watch was played in a place of public accommodation, the actual service100 “[did] not involve a 'place of public accommodation.'”101 The broadcast may have been “offered through the defendants,” but “not as a service of [a] public accommodation.”102 Target tried to argue that, like the NFL in Stoutenborough, Target.com was a service offered through, but not by, Target.103

The Ninth Circuit, however, found that “many of the benefits and privileges of [Target.com] are services of the Target stores.”104 Unlike the Sixth Circuit in Stoutenborough, where the public accommodation, a stadium, was not offering the challenged broadcast, Target stores were offering the services of Target.com.105 Because the challenged service in Target was “heavily integrated with the brick-and-mortar stores and operate[d] in many ways as a gateway to the stores,” Target.com was a service offered by Target.106

In Rendon, the Eleventh Circuit Court of Appeals held that a challenged service-a telephone screening process-occurring outside a place of public accommodation could be in violation of Title III without denying physical access to the accommodation.107 Under Rendon, intangible barriers may diminish the “full and equal enjoyment” of the services or privileges of a place of public accommodation, and thus, are a sufficient basis for a claim under Title III.108 In Target, the Ninth Circuit found that, like the telephone screening process in Rendon, the “inaccessibility of Target.com denies the blind the ability to enjoy the services of Target stores.”109

Unlike Stoutenborough and Rendon, Access Now did not involve a physical place of public accommodation. The Access Now plaintiffs argued that inaccessibility to a website, southwest.com, was depriving blind people access to “virtual ticket counters.”110 The plaintiffs did not demonstrate the website “impeded” access to a physical location.111 Since there was no potential link to a physical place of public accommodation, the court did not find a nexus between the challenged services of southwest.com and a Title III “public accommodation.”112 In Target, by contrast, the physical presence of Target stores and the integration between the stores and Target.com provided grounds for a nexus, thereby giving the plaintiffs a viable Title III claim.113

The Target court was the first to bring business websites within the reach of Title III by finding a nexus between Target.com and Target stores.114 Target, however, is a fact-specific holding, making it difficult to predict its impact on other cases involving websites as places of public accommodation. Part IV examines the implications and scope of the Target decision, concluding that, after seventeen years, Title III should be amended by Congress to address websites. By addressing these guidelines now, Congress will simply be acknowledging the pervasive role of the Internet and join other nations that have already addressed websites in comparable statutes.115 Furthermore, amending the ADA will obviate the need for disability advocacy groups and small businesses to rely on organized litigation to answer the question: to which websites does Title III apply?