I have been thinking about writing this blog post for some time. It reflects my changing opinion over the course of over twenty years working in web accessibility. During that time, I’ve come to believe that the so-called “nexus” test used in web accessibility cases is simply unworkable. It’s unwieldy, unpredictable and makes web accessibility litigation a crap shoot.
TL;DR
This is a geeky, legal post. If you're short on time, here's a quick summary.
The nexus test is confusing, out-of-touch with the times, and should be abandoned. If courts insist on keeping the nexus test, however, they should be more liberal in applying it. In particular, the nexus test should not be limited to inaccessible features on a website that impede access to a physical place of public accommodation because the ADA prohibits more than just eligibility criteria and screening processes. As long as a plaintiff can show that some inaccessible features of a website interfered with their ability to take advantage of the goods and services (or other benefits) of a place of public accommodation, the nexus test is met.
What is the Nexus Standard?
The nexus test is a legal requirement under Title III of the Americans with Disabilities Act (ADA) used by most of the courts in this country. Because it arises in Title III of the ADA, it only affects private sector organizations and has no effect on public sector organizations.
The nexus requirement exists because the language of the ADA prohibits discrimination by a “place of public accommodation”-- and most courts take the word “place” very seriously. In most jurisdictions, discrimination that doesn’t occur in a physical bricks and mortar establishment (such as through an inaccessible website) isn’t covered by the ADA at all unless there is some connection or “nexus” between that discrimination and such a physical establishment. This approach is followed by federal courts in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands), Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee), Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Marianas Islands), and the Eleventh Circuit (Alabama, Georgia, and Florida). As Florida and California have been the most popular venues for bringing web accessibility lawsuits, the nexus approach has a very big impact on web accessibility litigation.
A few jurisdictions take a more enlightened approach when interpreting the phrase “place of public accommodation” and recognize that the ADA is intended to cover disability-based discrimination even in non-physical places like the internet. For instance, in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) and the Seventh Circuit (Illinois, Indiana, and Wisconsin), federal courts will allow an ADA lawsuit to proceed against a purely online company.
Some other circuits are internally split between these two approaches. For instance, depending on which judge you end up facing, federal courts in the Second Circuit (Connecticut, Vermont, and New York) sometimes follow a strict nexus approach (see, e.g. Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995; 2021 WL 3617522 (E.D.N.Y. 2021)) or sometimes follow the more liberal approach (see, e.g.Jaquez v. Dermpoint, Inc., 2021 U.S. Dist. LEXIS 96067 (S.D.N.Y. 2021)). This point is important to remember because New York is another favorite venue for bringing web accessibility lawsuits.
Of course, this split between the circuits (and within some circuits like the Second Circuit) creates enormous confusion for American businesses. Because websites enable modern companies to maintain customers across the country, they become susceptible to litigation (and these different approaches) from anywhere. For instance, about two years ago, I described what happened to Sportswear, Inc., a Seattle-based company that could not be sued where they were located for their inaccessible website but ended up defending an ADA lawsuit from across the country. The confusion created by being susceptible to lawsuits from jurisdictions apply or don't apply the nexus test is the subject of a different post. This post describes why the nexus test itself is still unpredictable and needs to either be abandoned or clarified.
An Example of Courts Messing Up the Nexus Test
The straw that broke the camel’s back (and that inspired this post) was the pair of cases I described in last month’s legal update: Langer v. Oval Motor Sports, Inc., 2022 U.S. Dist. LEXIS 99575 (N.D. Cal. 2022) and Erasmus v. Andrea Tse M.D. Inc., 2022 U.S. Dist. LEXIS 107569 (E.D. Cal. 2022). These are two nearly identical cases decided at roughly the same time from two neighboring district courts—yet they applied the nexus test in completely different ways and came to opposite results.
In the Langer case, Chris Langer visited the website of Antioch Speedway to look for information about car racing but could not understand the videos on the site because the videos were not captioned. Because Mr. Langer could not show that he was deterred from physically visiting the speedway, the court held that he did not allege a clear nexus between barriers on the website and a physical place of public accommodation.
In the Erasmus case, Megan Erasmus was unable to understand videos about cosmetic dental procedures on the defendant’s website because they lacked captioning. While she was interested in the procedure, she also alleged that she was a “tester” and had no specific interest in visiting the defendant’s business. Nonetheless, the court found that Ms. Erasmus had standing because the lack of captioning affected her ability to make a decision about possibly becoming a customer.
Both cases are lawsuits over the lack of captioning on the defendant’s website. In both cases, the defendant never actually visited the defendant’s establishment. In both cases, the courts applied the same test and came to opposite conclusions. The only difference between the two cases was whether the plaintiff was deterred from visiting a physical place or affected in their decision to become a customer. I’ll describe later why the Erasmus court came to the correct decision while the Langer court got it wrong.
A Better Approach to the Nexus Requirement: Focus on the Type of Discrimination
Let me just make clear at the outset that I really believe that the nexus requirement should be abandoned. It makes no sense to me that online-only companies should get a free pass to discriminate against people with disabilities. Internet sales have also transformed the American consumer landscape and offer amazing benefits for people with disabilities—if those websites are accessible. If we must keep the nexus requirement, however, I would like to offer some thoughts on how courts should apply it in a more logical and consistent way--and the answer here is to go back to the fundamentals of the ADA and examine the type of discrimination.
Most nexus decisions ultimately trace their lineage back to the Eleventh Circuit case, Rendon v. Valleycrest Productions, 294 F.3d 1279 (11th Cir. 2002)—a case that didn’t involve websites at all and that presented a very unique fact scenario. In that case, Sergio Rendon wanted to be a contestant on the game show Who Wants to Be a Millionaire but was unable to get past the telephone screening process because the telephone-based audio cues were inaccessible to him because of his hearing impairment. The Eleventh Circuit noted that the game show was the place of public accommodation and the telephone screening process was the eligibility criteria for accessing that game show. The Rendon court noted that the ADA prohibits “eligibility criteria that screen out or tend to screen out individuals with disabilities” even where that discrimination takes place outside of the physical place of public accommodation.
Later interpretations of Rendon– and the nexus test in general— have roughly split in two directions. The first approach used by some courts is to require a nexus between off-site discriminatory conduct and the ability to enjoy the goods, services, or benefits of a place of public accommodation. The second approach used by other courts is that discrimination that occurs off-site (such as through the internet) is not illegal as long as it does not impede access to a physical place of public accommodation.
The problem with applying the second approach to websites is that websites rarely involve facts that even remotely resemble the facts in Rendon, which involved a telephone screening process. Most websites for physical businesses don’t screen customers; instead, these websites facilitate usually access to the goods and services available at a place of public accommodation—such as by offering coupons, locating stores, and facilitating returns. [1]
Discrimination under the ADA can take many forms. Title III prohibits discriminatory eligibility criteria, failing to make reasonable modifications of policies, not providing appropriate auxiliary aids and services, and other forms of discrimination. If courts insist on adhering to the nexus test, then the “impeding access” formulation of the nexus test should only be restricted to cases alleging improper eligibility criteria. Otherwise, courts should follow the less restrictive requirement of a nexus between the website and the ability to enjoy the goods, services, or benefits of a place of public accommodation.
Here's checklist to make this simple:
- Is the alleged discrimination an eligibility criteria or screening process? If so, then ask if that eligibility criteria or screening process impede access to the goods and services at a place of public accommodation.
- Does the alleged discrimination involve anything more than just an eligibility criteria or screening process? If so, then ask if that discrimination affects the enjoyment of goods and services offered by a place of public accommodation.[2]
Going back to the Langer decision, it’s clear that videos on a speedway’s website are not an eligibility criteria or screening process like the telephone screening process in Rendon. Thus, whether those videos affected Chris Langer’s ability to physically go to the speedway is irrelevant. But the lack of captioning did affect his decision to potentially drive at the speedway so the speedway’s failure to provide appropriate auxiliary aids or services could be discriminatory and so the court should not have granted the defendant’s motion to dismiss.
Why It’s Up to the Courts to Get this Right
I’ve blogged before about the need for my old office at the U.S. Department of Justice to develop better web accessibility regulations. While my former colleagues remain tight-lipped, there are rumors of a renewed push for regulations (although my money is still on regulations for Title II coming out first). As enormously useful as such regulations may be, I believe that they will have a very limited impact on clarifying the nexus requirement. Normally, federal courts are supposed to accord deference to federal agencies in interpreting its own regulations. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). This makes perfect sense because federal agencies maintain the expertise on highly technical issues. This deference is much more restricted, however, when it comes to interpreting the agency’s jurisdiction under a statute. This means that the Department of Justice can develop regulations for online businesses under the ADA—but whether those businesses are covered by the ADA is not affected by Chevron or the Department’s interpretation.
This means that it is up to the Federal courts to straighten out this mess. And the best way to start is by either abandoning or clarifying the nexus standard.
Footnotes
[1] I’ve previously discussed why this version of the nexus test is incorrect in my post about the 11th Circuit’s Winn-Dixie opinion. I also believe that it reads Rendon incorrectly for two reasons. First, the Rendon court specifically noted that the ADA included barriers other than just those barriers that prevented physical access.
A reading of the plain and unambiguous statutory language at issue reveals that the definition of discrimination provided in Title III covers both tangible barriers, that is, physical and architectural barriers that would prevent a disabled person from entering an accommodation's facilities and accessing its goods, services and privileges … and intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person's ability to enjoy the defendant entity's goods, services and privileges. There is nothing in the text of the statute to suggest that discrimination via an imposition of screening or eligibility requirements must occur on site to offend the ADA.
Rendon at 1283-84. Second, this interpretation conflates Rendon’s fact scenario (telephone screening process) with the nexus test to effectively limit the nexus standard only to discriminatory screening processes.
[2] This two-part test follows easily from the Department of Justice’s Title III regulations. Eligibility criteria are a specific form of discrimination that “screen[s] out or tend[s] to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.” 28 C.F.R. § 36.301 (2022). “Impeding access” to a place of public accommodation is “screening out or tending to screen out” access to it. Where the discrimination is different from solely an eligibility criteria, the ADA Title III regulations prohibits any discrimination in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 28 C.F.R. § 36.201 (2022).
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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