IV. Title III and Business Websites Post- Target

Although the Ninth Circuit has not yet determined whether Target violated Title III for failure to make Target.com accessible to the blind, allowing the claim to proceed is significant because it demonstrates judicial willingness to bring websites within the jurisdiction of Title III.116 However, while the Ninth Circuit found a nexus in Target because of the integrated services of Target.com and Target stores, it did not state a rule regarding the degree of integration necessary to find a nexus.117

The Target court opened the door for Title III claims related to business websites by establishing the other end of the spectrum from the Eleventh Circuit in Access Now,where the court found no nexus because no public accommodation was involved.118 In defining the other end of the spectrum, the Ninth Circuit addressed only the facts of Target and did not address the potential fact scenarios that are likely to arise in the area between the spectrum's endpoints. The “heavily integrated” and “gateway to the stores” language of Target provides an unformulated standard and will require other circuits to define points on the continuum between the endpoints as they address future Title III claims.119

A. The “Heavily Integrated” Facts of Target

The degree of integration between the services of Target stores and Target.com was crucial to the Target decision. Target shoppers have the ability to use Target.com to get information about locations and hours of operation, order prescription refills, order photos online, or print coupons to redeem at a store.120

The Ninth Circuit's decision implies that websites of other major retailers, such as Wal-Mart and K-Mart, may have a sufficient nexus to brick-and-mortar stores to support Title III claims.121 It is not unreasonable to anticipate that other circuits will be willing to adopt an approach similar to the Target court-finding websites of large retailers have a nexus to the storefronts and, therefore, are actionable under Title III. However, the extension of the Ninth Circuit's reasoning to retailers with website services less integrated to storefronts remains unclear.

B. How Significant Does the Integration Need to Be?

Over the last few years, the evolution of the Internet has transformed the way many companies do business.122 For example, numerous businesses operate exclusively online, selling products from their website and keeping inventory at a warehouse.123 Moreover, most traditional retailers also have websites that supplement their physical presence by offering the same inventory sold in their physical stores.124 While it is difficult to predict how narrowly courts will interpret and apply the Ninth Circuit's integration standard, if left to judicial discretion, it is possible that many small businesses with websites will be found to have a nexus between their storefronts and their websites-opening these businesses to unanticipated Title III liability.

The Target holding was limited to cases where the website offers information and services connected to storefronts.125 Based on the required connection, it seems an online-only retailer would not be vulnerable to a Title III action against its website.126 Since the warehouse is not a place of public accommodation falling within any of the twelve enumerated categories in Title III,the connection or integration necessary to create a nexus would not exist.127 The Ninth Circuit, however, did not indicate the degree of connection or integration necessary for a nexus to exist between a website and a storefront.128

While it is clear from Target that heavily integrated services will meet the nexus requirement, the court implies that any connection between a store and website that affects the enjoyment of the goods and services of a store may be sufficient to find a nexus. There are numerous small businesses with websites offering similar types of information and benefits that Target.com offers to its customers. For example, most retailers with websites provide information regarding store location and hours of operation. In addition, like Target.com, many retailers offer coupons through their websites which can be redeemed in stores.

Providing store location and hours of operation through a website may not constitute information and services affecting the enjoyment of the goods and services of the actual store. Using Target as an example, a small retailer that offers coupons to customers through a website not accessible to the visually impaired could easily be seen as affecting the enjoyment of the goods and services of the brick-and-mortar store. Ultimately, the outcome of Title III's application to small businesses for inaccessible websites will depend on judicial interpretation of Target.

While the issue has not yet been litigated, the Target plaintiffs argued that the costs associated with making a website user-friendly for the blind are “not economically prohibitive.”129 Costs of making websites accessible to the blind may be the main issue for large-scale retailers,130 but the costs are only one of the concerns for small businesses faced with Title III claims. Another challenge for small businesses is understanding this requirement in the first place. As the ADA and Title III stand today, there is no language that provides notice to small business owners that their websites must be made accessible to the blind. Further, in the wake of Target, it is not clear how the different circuits will choose to apply Title III to business websites. However, without the clarity provided by statutory language, even if circuits aligned uniformly on the application of Title III to websites, through no fault of their own, the uninformed, small business person would face a high risk of litigation for ignorance of the common law.