Last month, I noted a slow down in web accessibility cases and expected the pace to pick up in September. But I was wrong. This month has been the slowest month for web accessibility legal opinions for over a year. In fact, I have only one case to briefly describe-- and it comes from a jurisdiction that rarely makes the news: Pennsylvania!
Division in the Third Circuit over the Nexus Requirement
Two months ago, I blogged about the split between the Southern District of New York and the Eastern District of New York over the nexus standard. In short, the Southern District lets plaintiffs sue purely online companies while the Eastern District requires that plaintiffs show a close nexus between an inaccessible website and a physical, bricks-and-mortar place of public accommodation.
This month, the district court in Douglass v. Blendjet, 2022 U.S. Dist. LEXIS 171718 (W.D. Pa. 2022) reminded us that a similar split exists in the Third Circuit between the Western District and Eastern District of Pennsylvania. In Blendjet, Blair Douglass sued the defendant because its website was inaccessible. The company sold clothing and cosmetic products and was purely online (it had no physical stores). The defendant asserted that the Eastern District of Pennsylvania recently ruled that a plaintiff needed to establish a nexus between a website and a physical place of public accommodation, but the Blendjet court disagreed.
The Court finds that Defendant - who solely engages in ecommerce - is not excused from Title III's mandate merely because it does not operate a brick-and-mortar store. To do otherwise would thwart the very purpose of the Americans with Disabilities Act.
Blendjet, at *13. See also, Douglass v. 360 Sweater Co., 2022 U.S. Dist. LEXIS 171709 (W.D. Pa. 2022)(decided on same date at Blendjet and permitting suit based on inaccessible features on a website without showing a nexus).
Courts Should Abandon the Nexus Requirement
The Blendjet opinion is just one of the latest opinions to abandon the nexus requirement in circuits that previously adopted it. A few weeks ago, I presented with 3PlayMedia and suggested that it was time that courts should abandon it-- and I believe it more strongly now than ever.
A website is simply a form of communication by a business. In this sense, it is no different than a printed menu or a telephone. If a restaurant refused to provide an alternative to a printed menu or a company refused to allow people with disabilities to place phone orders like non-disabled customers, few people would quibble about whether the menu or the telephone constituted a "place of public accommodation." So why should websites get singled out for special treatment?
Rejecting the nexus test solves the ridiculous position that courts currently face when they look for a "nexus" between a website and a physical bricks-and-mortar place of public accommodation. Of course, this solution doesn't answer the question of whether a purely online company can be sued-- but such companies would be in exactly the same position as purely phone-based or mail order companies. To my mind, this is a logical comparison.
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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