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Hastings Communications and Entertainment Law Journal

Authors

Deeva V. Shah

Abstract

Title III of the Americans with Disabilities Act ("ADA") aims to prevent discrimination against the disabled in places of public accommodation. Unlike many other anti­ discrimination statutes, the ADA requires places of public accommodation to take affirmative steps to ensure access for the impaired. Courts currently differ on whether a place of public accommodation requires a physical location or whether nonphysical places, such as a retailer's website, also fall under the statute. Some courts apply the nexus test to determine the whether the ADA applies to online content. Under the nexus test, there must be a connection between a physical place of public accommodation and the inaccessible goods or services. However, the nexus test is easily misapplied and has led to conflicting decisions from courts on very similar issues. This article argues that instead of applying the nexus test, courts should interpret Title III to apply to online content whether or not there is a nexus to a physical place. The nexus test leads to confusion and contradictory results for the same business operating in different jurisdictions. This article contends that federal courts should either state that the ADA, as written, already applies to providers of online content or find that the ADA is at least ambiguous when considering whether websites could be places of public accommodation. This article also argues that the sole responsibility of applying Title III to online accessibility issues should not rest upon the courts. The Department of Justice ("DOJ"), statutorily tasked with ADA regulation, proposed web accessibility guidelines in 2010 in an Advance Notice of Proposed Rulemaking ("ANPRM") for the ADA. This ANPRM has not yet moved to the next stage of notice-and-comment rulemaking and contains multiple holes in structuring web accessibility guidelines. By changing the ANPRM enforcement standards to be more flexible and addressing concerns regarding the burden on small business owners and user-generated content, the DOJ may be able to protect visually impaired users by issuing an updated Notice of Proposed Rulemaking in the near future. Administrative rulemaking and nonbinding guidance documents is likely to bring about more constructive change than judicial interpretation alone, ensuring communication barriers are removed for the visually impaired.

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