For several years I have tried to convince judges in the Southern District of New York (S.D.N.Y.) that websites were not “places of public accommodation” subject to lawsuits under Title III of the Americans with Disabilities Act (ADA) 42 U.S.C.A. §12181, et. seq.
This position is not a stretch by any means given that the statute, on its face, limits its application to “places,” which are inherently physical. Yet time and again courts either avoided the issue, or held that ‘place’ should be interpreted generously enough to encompass businesses having a purely digital presence. This expansive view of the ADA—found nowhere in the text of the statute—took on a life of its own, being repeated so often and so mechanically as to become an assumed part of the law itself.
But then came High Brew Coffee Inc. and Fresh Clean Threads—two recent S.D.N.Y. decisions that upended the notion that this issue is closed. This (dare I say) movement has revived a dismissal defense that was all but dead, providing a glimmer of hope for e-commerce companies facing frivolous website accessibility lawsuits in New York.
Title III of the ADA directs 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.”
The statute does not define the term “place of public accommodation,” and instead provides that entities are public accommodations if their operations affect commerce, and fall within one of 12 enumerated categories of different types of enterprises. 42 U.S.C.A. §12181(7).
Within these categories, Congress provided a list of 50 examples of places of public accommodation, 49 of which are undeniably physical locations. The lone outlier, “travel service,” has provided the hook used by courts to posit that Congress intended the term “place of public accommodation” to include online businesses with no physical presence.
Proponents of this position are quick to point out the internet did not exist in 1990. They conveniently ignore, however, the proliferation of non-physical businesses that did exist in 1990 (catalogs, vending machines, televised home shopping, etc.) none of which were listed in the set of examples. Congress may not have been thinking about the internet specifically, but it seems clear that it was thinking that “place” would have its typical everyday meaning—a physical location.
The U.S Supreme Court has never reached the question of whether a “place of public accommodation” needs to be a physical place, nor has the U.S. Court of Appeals for the Second Circuit ever addressed the issue. Nevertheless, several New York District Court judges have drawn on the Second Circuit’s decision in Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999) to conclude that websites were covered.
In Pallozzi, the Second Circuit held that the language of Title III of the ADA stating that the ADA protects against the denial of goods and services of a place of public accommodation applied to the situation where an insurance company refused to sell a life insurance policy to a disabled client. The issue was whether an insurance policy was a good or service of a place of public accommodation.
Following the explosion of website accessibility cases in 2017, Pallozzi’s holding was stretched to stand for the proposition that any businesses (even purely e-commerce ones) that transacted with the public were places of public accommodations regardless of whether they transacted physically in a store or through another medium unrelated to a physical location.
For example, in Del-Orden v. Bonobos, Inc., No. 17 CIV. 2744 (PAE), 2017 WL 6547902, at *1 (S.D.N.Y. Dec. 20, 2017), the presiding judge held that websites themselves qualified as places of public accommodation because Pallozzi made clear that Title III applies to services which can exist independent of a physical space, which meant that electronic places which provide services were covered. Several other S.D.N.Y. Judges issued similar rulings on similar grounds.
Relying on Pallozzi as the basis for extending the reach of the ADA to websites having no connection to physical places was questionable from the start. Indeed, before finding that the insurance policy that the plaintiffs were being denied was a good or service of a place of a public accommodation, the Pallozzi court first found that the text of the statute specified an “insurance office” as a “public accommodation.”
Only upon satisfying the physical place public accommodation requirement did the court reach the issue of whether the insurance policies issued by the physical insurance office were goods or services of that place. Pallozzi thus does not support the notion that websites are covered in the ADA.
Aside from Pallozzi, courts have looked to another circuit court opinion, Carparts Distribution Center, Inc. v. Automotive Wholesaler's Association of New England, Inc., 37 F.3d 12 (1st Cir. 1994), for support for applying the ADA to websites. This too is unsupported.
In Carparts, the U.S. Court of Appeals for the First Circuit found that, because the statute contained a counter-example of public accommodations, “travel service,” which did not require the existence of a physical structure, Congress intended for the ADA to reach any commercial service providers regardless of whether they were selling to customers in a defined physical space.
Carparts was based on the dubious assumption that travel services were necessarily non-physical places. But that was plainly not so. While some travel services conducted business by telephone without requiring their customers to enter an office, the more typical travel agencies of the time (American Express Travel, Liberty Travel, etc.) operated out of physical spaces.
The notion that Pallozzi or Carparts supported (much less, compelled) applying the ADA to websites was dismantled as early as August 2021 by the Honorable Eric R. Komitee in Winegard v. Newsday LLC, 556 F. Supp. 3d 173 (E.D.N.Y. 2021).
Judge Komitee explained that travel services, read in context, referred to travel agencies and to facilities, and there was no suggestion in the statute (or in logic) that a travel service must be a virtual operation.
Moreover, the court recognized that identifying a physical place, per Pallozzi, was a condition precedent; and only once that condition is satisfied, were the goods and services sold by that place of public accommodation swept within the ADA’s remit. Congress could easily have said the ADA applies to “all businesses operating in interstate commerce,” or all “retail” or “service” operations, but it chose not to, and thus the plain language used by Congress demonstrated its decision to apply the ADA to physical places rather than business operations generally.
Aside from a few decisions in the Eastern District of New York (E.D.N.Y.) by the Hon. Brian Cogan (similarly finding that stand-alone websites were not covered), no other E.D.N.Y. judges, and no S.D.N.Y. judges ever, had held in reported decisions that the ADA excludes websites of businesses with no public-facing, physical retail operations from the definition of public accommodations. Over time, many practitioners concluded that the argument was largely settled in the S.D.N.Y. and turned their efforts toward advancing other pre-answer dismissal theories.
Two decisions issued recently and in rapid succession now call that conclusion into question, and perhaps signal a turning point on the jurisprudence on this issue.
First, in Mejia v. High Brew Coffee Inc., No. 1:22cv3667, 2024 WL 4350912 (S.D.N.Y. Sept. 30, 2024), the Hon. Chief Judge Laura Taylor Swain agreed with Judge Komitee that there was no definitive Second Circuit guidance on the issue because, at most, Pallozzi supported the conclusion that websites are swept up in Title III of the ADA only when they offer the same goods and services as the business’s brick-and-mortar operation. In the absence of binding precedent, Swain interpreted the text and structure of the statute and held that each compelled finding that a stand-alone website is not a place of public accommodation.
Reviewing the historical context, Swain noted that, in the antidiscrimination context, the phrase “a place of public accommodation” has long referred to businesses with public-facing physical facilities, which was consistent with her review of the fifty entities listed in the ADA.
Looking further to the text, the court found that the statutory construction principle, ejusdem generis—which counsels that where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words—supported the view that the general clauses following each category, such as “any other service establishment,” should be confined to public-facing physical locations.
Moreover, the court found that a standalone website should not be considered a “place of public accommodation” because the statute did not explicitly address businesses without a physical location, such as mail order merchandise and television shopping channels, despite numerous applicable business models in existence at the time the statute was written.
About two weeks later, in Sookul v. Fresh Clean Threads, Inc., No. 1:23-CV-10164-GHW, 2024 WL 4499206, at *1 (S.D.N.Y. Oct. 16, 2024), the Hon. Gregory H. Woods similarly held that the plain text of the ADA makes clear that a standalone website was not a “place of public accommodation” subject to Title III’s protections. As Judges Komitee and Swain before him, Woods concluded that the entities subject to Title III were not limitless. Had Congress intended Title III to apply to all businesses, rather than a list, Congress would simply have said it applies to “all businesses operating in interstate commerce.”
After demonstrating that the historic (and dictionary) definition of “place” overwhelmingly defined it to mean a physical location, the court noted that only one of the fifty examples in the list of categories (travel service) was even arguably not a physical place. The court concluded that relying exclusively on the nebulous “travel service” phrase was too thin a reed on which to rest an argument that websites fell within Title III.
In addition to applying ejusdem generis, the court looked to another canon of construction, noscitur a sociis, which guides that a word is given more precise content by the neighboring words with which it is associated. Because the term “travel service” is surrounded entirely by brick-and-mortar establishments (e.g., a barber shop, a beauty shop, a shoe-repair service, a funeral parlor, and a gas station), the court held that noscitur a sociis supports finding that “travel service” must refer to a physical location as well, even if a contrary interpretation was literally permissible.
Ultimately, the High Brew Coffee Inc. and Fresh Clean Threads courts recognized that Title III of the ADA cannot be read to encompass such a significant portion of the American economy as internet commerce with so little basis in the statute’s text. This conclusion is sound enough to warrant an examination of prior jurisprudence and where the law is headed.
Of course, these are just two decisions which conflict with the greater number of rulings going the other way. Yet there is reason for optimism for online businesses. Both opinions are comprehensive, well-reasoned, and—given their meticulousness—difficult to ignore.
Assuming that the Second Circuit does not get the opportunity to settle the issue in the near future, these rulings should be weighed by S.D.N.Y. judges deciding dismissal motions on grounds that the ADA does not apply to stand-alone websites.
"A Website Is Not a ‘Place.’ What Took So Long to Get This Right?'," by Martin S. Krezalek, was published in the New York Law Journal on November 20, 2024.
Reprinted with permission from the November 20, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
