It was a slow month in my Lexis feed this month...
A Web Accessibility Case from Illinois?
As we all know, web accessibility cases are almost always filed in one of three venues: New York, Florida, and California. This has always puzzled me because the law appears most favorable for plaintiffs in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) and the Seventh Circuit (Illinois, Indiana, and Wisconsin) because these circuits allow lawsuits against online-only companies because they do not follow the unworkable nexus requirement used in other circuits.
This month, one of those rare cases popped up in my Lexis feed. In Colon v. HY Supplies, Inc., 2023 U.S. Dist. LEXIS 204526 (N.D. Ill. 2023), Jocelyn Colon could not order beauty supplies from the website of HY Supplies because the website was not accessible to her screen reader and she filed a lawsuit against the company. HY Supplies quickly moved to dismiss her complaint, asserting that Ms. Colon did not have standing to sue. As part of the court’s analysis, it considered its ability to redress the Ms. Colon’s injuries and noted that the Seventh Circuit had twice rejected the nexus requirement and held that discrimination by a place of public accommodation does not need to occur in a physical place. This happened first in Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999) and again in Morgan v. Joint Administration Board, 268 F.3d 456 (7th Cir. 2001). Based on these precedents, the court held that Ms. Costa did not have to articulate a connection between HY’s website and a physical place of public accommodation.
HY Supplies also asserted that Ms. Colon did not state whether she ever tried to buy the products she wanted by simply calling the company or reaching the company by email. The court’s ADA analysis here gets a little muddled (in its analysis of an “auxiliary aid option” and an accessible phone option as an affirmative defense), but the end result was sound: the court could not dismiss Ms. Colon’s complaint because it would require additional evidence that Ms. Colon could have easily ordered supplies over the telephone and thus avoid discrimination through HY’s website.
How Not to Plead an ADA Web Accessibility Case in Nexus Jurisdictions
Two cases this month came across my Lexis feed from opposite ends of the country. Both cases illustrated the same point: a complaint needs to allege discrimination in the feature of the website creating a nexus to the place of public accommodation.
What the heck does that mean? First, a bit of background. As we all know, the “nexus requirement” is the standard used by most circuits for determining if a place of public accommodation can be sued based on its website. In a nutshell, the idea is that, because websites are not physical “places” and because Title III of the ADA only prohibits discrimination by “places of public accommodation,” a plaintiff needs to show that some feature of a website ties (or creates a “nexus”) to a physical place of public accommodation. This can be features like buying gift cards online that are redeemable at a physical store or making purchase online that can be picked at a physical store. While the nexus requirement sounds fine in theory, I’ve complained a lotabout the nexus requirement because I think it’s unworkable and inconsistent.
So the point of these two cases is that just establishing a nexus between a website and a place of public accommodation isn’t enough. Instead, the inaccessible feature itself must create or be part of that nexus.
For instance, in Langer v. AAA, 2022 U.S. Dist. LEXIS 204591 (S.D. Cal. 2022), Chris Langer sued the American Automobile Association (AAA) because some of the videos on its website were inaccessible. While AAA does operate physical places of public accommodation (and there are likely many features of the AAA website that connect it to AAA’s physical businesses, the court agreed, noting that, “he does not allege how any alleged difficulties in accessing the website prohibited him from taking advantage of the benefits offered by AAA's physical places of public accommodation.” Id. at *6.
From the opposite end of the country, the court is Ariza v. Art Core Furniture LLC, 2023 U.S. Dist. LEXIS 209033 (M.D. Fla. 2023), issued a confusing opinion but ultimately came down to the same conclusion. In this case, Victor Areza was a previous and prospective customer of Art Core Furniture. He visited the website but could not use it because it was inaccessible. He also alleged that he intended to visit the store in the near future to buy furniture. He also alleged that the website included lots of features that may give rise to a nexus to a physical store—such as providing information about the stores, purchasing online for pickup at a store, applying for credit for buying furniture at stores, etc. As the court examined each of the allegations in the complaint, it found that none of them suggested that some feature of the website prevented Mr. Ariza from actually being a customer at the store.
Neither the Langer nor the Ariza opinion explicitly say that the plaintiff’s complaint must allege that the inaccessible feature of the website must also create the nexus but I think it’s a pretty easy conclusion to draw. For instance, in the Langer opinion, the court noted that,
The complaint here does not allege that the lack of closed captioning on videos on AAA's website impeded Plaintiff's ability to access or order goods or services from AAA's physical locations… That the alleged value of the website and videos themselves is independent of the goods and services offered at AAA's physical locations demonstrates that there is no nexus between the two.
Langer, at *7. The Ariza opinion wanders confusingly but the court ultimately focuses on the fact that the plaintiff’s complaint boils down to the inaccessibility of the defendant’s website without any reference to how those barriers prevented him from becoming a customer of the defendant’s store.
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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