[Ohio-talk] what the heck? how is this possible?

[richard]

273-302_dupree-voliss2 (2).pdf
NORTHCAROLINA JOURNAL OF LAW &TECHNOLOGY VOLUME 8,ISSUE 2:SPRING 2007 
WEBSITES AS“PLACES OFPUBLIC ACCOMMODATION”: AMENDING THE AMERICANS WITH DISABILITIES ACT IN THE WAKE OF NATIONALFEDERATION OF THE BLIND V. TARGETCORPORATION

Isabel Arana DuPree1
The question of whether Title III of the Americans with Disabilities Act does or should apply to websites has been an issue of public interest since the
advent of the Internet. In National Federation of the Blind v. Target Corporation, the Ninth Circuit was the first to find that Title III did apply to
a website. AlthoughTarget was based on a specific set of facts, the decision highlights the need for Congress to amend the Act to address websites. This
Recent Development explains why it is appropriate for Congress totake action now and examines several possible approachesCongress could take in amending
the Act to address its application to websites.
I.
INTRODUCTION
In National Federation of the Blind v. Target Corporation,2Bruce Sexton,3 a blind individual, filed suit against Target Corporation (“Target”) for discriminating
against disabled persons.4 In their complaint, the plaintiffs asserted that because Target’s website, Target.com, was inaccessible to the blind, the defendants
violated the Americans with Disabilities Act (ADA).5Target filed a motion to dismiss stating the plaintiffs’ claim was 
1 J.D. Candidate, University of North Carolina School of Law, 2008. Specialthanks to Associate Deanfor AcademicAffairs and Professor of Law Laura Gasaway,
Clinical Assistant Professor Amy Flanary–Smith, MikeAnderson, and BradDuPree for their comments and suggestions. 
2 452 F. Supp. 2d946(N.D. Cal. 2006). 
3 Mr. Sextonwas joined by the National Federationofthe Blind and theNational Federationof the Blind of California in this lawsuit. 
4 Nat’l Fed’n of the Blind v. Target Corp. (Target), 452 F. Supp. 2d 946, 949 
(N.D.
Cal.2006).542 U.S.C. §§ 12101–12213 (2006); 47 U.S.C. §§ 225, 611 (2006).
273 
274 N.C.J.L.&TECH. [VOL.8:273 
not actionable because Target.com was not a “place of public accommodation” recognized by Title III of the ADA6 (Title III).7Ultimately, the court found
the plaintiffs’ claim viable because Target.com had a nexus to Target stores, which are places ofpublic accommodation.8
Target highlights the need for Congress to reexamine whether websites are potential places of public accommodation,9 and to amend the Act to address the
websites to which Title III should apply. In Target,the Ninth Circuit became the first to allow an inaccessibility claim to proceed against a business
website under Title III.10 While the holding in Target was highly fact specific, the decision could have serious implications for websites or other remote
access accommodations not explicitly addressed in the “public accommodation”11 language of Title III. By amending Title III, Congress will proactively
address which websites are subject to Title III. Thus, Congress should reexamine the definition of a public accommodation in the ADA and either include
a clearly defined set of websites or explicitly excludewebsites altogether. 
642 U.S.C. §§ 12181–12189 (2006). 
7Target, 452 F. Supp. 2d at 950.
8Id. at 955 (“Defendant’s argument is unpersuasive and the courtdeclines todismiss the action for failure to allegea denial of physical access to the Targetstores.”).

9 Although Congress examined this issue in 2000, because of the number of published decisions in the past few years specifically addressing the issue ofwebsites
and the ADA, it seems appropriate to reexamine the issue again. Seeinfra Section IV. Seealso Charles D. Mockbee IV, Caught in the Web of theInternet: The
Applicationof the Americans with Disabilities Act toOnline Businesses, 28S.ILL.U.L.J. 553,571 (2004). 
10 CARLA J.ROZYCKI&DARREN M.MUNGERSON, AM.SOCIETY OFASS’N EXECUTIVES, NATIONAL FEDERATION FOR THE BLIND V.TARGET CORP.:ITS POTENTIALIMPACT ONWEB SITES
AND SERVICES (Nov. 2006), https://shop.asaenet.org/news/AL%26PNov06.htm (“The United StatesDistrict Court for the NorthernDistrict of California’s . .
. opinion in [Target] is the first published decision allowing a claim of inaccessibility of a website to proceed against a private entity under Title
III of the ADA.”) (last visited Feb. 25, 2007) (on file with the NorthCarolina Journal of Law & Technology). 
1142 U.S.C. § 12182(a) (2006). 
SPRING 2007] Amending the ADA following Target
This Recent Development examines the need for Congress to revisit Title III to add websites as public accommodations. Part II examines the background of
the ADA, including a detailed view ofthe language of Title III. Part III provides a review of three recent opinions that were most influential on the Ninth
Circuit’s decision in Target, and how the court reconciled these opinions to reach the Target decision. Part IV addresses Target’s implications and the
questions raised by the lack of a clear rule following Target. Part V concludes with an examination of why Congress should amend the language of Title
III to address websites, how Congress could proceed, and whether narrow or broad language addressing websites would better serve the purpose and administration
of Title III. 
II.
THE AMERICANS WITH DISABILITIES ACT
A. 
Background of the Americans with Disabilities Act People affected by disabilities most often rely on other people, businesses, and governments to make
daily activities such as crossing the street, reading a menu, or using an automated teller machine (“ATM”) less burdensome. Seventeen years ago, Congress
passed the ADA in an effort to eliminate discriminatory barriers for the disabled in everyday living.12 In the ADA,Congress noted that millionsof Americans
suffer fromdiscrimination on the basis of their mental or physical disabilities.13Furthermore, the discrimination faced by this substantial minorityof
Americans impacts all aspects of their lives, including employment, housing, public accommodations, education,transportation, communication, recreation,
institutionalization,health services, voting, and access to public services.14 By
enacting the ADA, Congress intended to provide enforceable standards to address discrimination against the disabled in these 
12See 42 U.S.C. § 12101(b)(1) (2006). The Act invoked Federal authority toenforce the standards outlined in the ADA against private entities and states
through the Commerce Clause and the Fourteenth Amendment. 42 U.S.C. § 12101(b)(4).
1342 U.S.C. § 12101(a) (2006). 
14Id.
276 N.C.J.L.&TECH. [VOL.8:273 
areas, and to vest the enforcement role in the Federal Government.15
B. 
Title III and “Place of Public Accommodation” Title III addresses discrimination in the context of public accommodations.16 It prohibits a place of public
accommodationfrom denying disabled persons the “full and equal enjoyment” of that public accommodation.17 Title III is different from other anti-discrimination
statutes because it requires places of public accommodation to take affirmative action to prevent discrimination against the disabled.18The statute identifies
four contexts in which discrimination by a place of public accommodation could exist.19 First, 
discrimination will occur when an accommodation imposes eligibility criteria which either “screen out or tend to screen out” 
1542 U.S.C. § 12101(b)(2)–(3).
16See42U.S.C. §§ 12181–12189 (2006). 
17 42 U.S.C. §12182(a) (“No individual shall be discriminated against on the basis ofdisability in the full and equal enjoyment ofthe goods, services,
facilities, privileges, advantages, or accommodations of any place of publicaccommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation.”). Title III explicitly defines a “public accommodation” to include: (1) hotels and other similar places of lodging, 
(2)
restaurants and other places serving food or drink, (3) movie theaters or other places of entertainment, (4) auditoriums, convention centers, or lecture
halls, 
(5) 
grocery stores, shopping centers, and other sales establishments, 
(6) 
laundromats, banks, professionaloffices, or other service establishments, 
(7) 
any station usedfor specifiedpublic transportation,(8) museums, libraries, or other places of public display, (9) zoos and places of recreation, (10) places
of education, (11) social services establishments, and (12) places of exercise or recreation. See 42 U.S.C. § 12181(7). For purposes of Title III and this
Recent Development, the phrases “accommodation,” “public accommodation,” and “place of public accommodation” are used interchangeably to refer to the accommodations
defined within the statute. 
18Target, 452 F. Supp. 2d 946, 951 (N.D. Cal. 2006) (citing H.R. Rep.No. 101-485, pt. 2,at 104 (1990)); 42U.S.C. § 12182(b)(2)(A)(ii)–(iv)(2006)(“The ADA
thus departs from certain anti-discrimination statutes in requiringthat places of public accommodation take affirmative steps to accommodate thedisabled.”).
19See 42 U.S.C. § 12182(b)(2)(A). 
SPRING 2007] Amending the ADA following Target
disabled people from equal enjoyment of the accommodation.20For example, requiring someone to be able to walk as a prerequisite for being a contestant
on a television game show would be discrimination under Title III.21 Such eligibility criteria are allowed only to the extent they are necessary for the
provisionof goods or services being offered by the public accommodation.22It is not necessary that contestants be ambulatory for a game show to provide
the services it offers to the public. 
Second, discrimination under Title III occurs if a public accommodation fails to make reasonable modifications to itspolicies or procedures in order to
make its services or goods available to the disabled.23 However, modifications that would alter the nature of the services or goods offered by the accommodation
are not required.24 In other words, a bookstore may be required to make its facilities handicapped accessible, butit would not be required to start selling
books printed in Braille because such a modification alters “the nature or mix of goods” being offered by the book store.25
20 42U.S.C. § 12182(b)(2)(A)(i) (imposing “eligibility criteria that screenoutor tend to screen out an individual . . . or any class of individuals withdisabilities
from fully and equally enjoying any goods, services, facilities,privileges, advantages, or accommodations”). 
21See, e.g.,Rendonv. Valleycrest Prod., Ltd., 294 F.3d1279, 1285 (11th Cir. 2002) (statingthat the screeningout of otherwise qualified persons on the basis
of a disability would violate the ADA). 
2242
U.S.C.
§ 12182(b)(2)(A)(i) (2006) (disallowing eligibility criteria “unless suchcriteria can be shown to be necessary for the provision of the goods, services,
facilities, privileges, advantages, or accommodations”). 
2342 U.S.C. § 12182(b)(2)(A)(ii).
24Id. (stating reasonable modificationsare necessary “unless the entity can demonstrate thatmaking such modifications would fundamentally alter suchnature
of the goods, services, facilities, privileges, advantages, oraccommodations” of the entity). 
25SeeNondiscriminationon the Basis of Disability by PublicAccommodations and in Commercial Facilities, 56 Fed. Reg. 35,544, 35,571(July26, 1991) (codified
at28 C.F.R. pt. 36). The Department of Justice stated:
The purpose of the ADA’s public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the
nature or mix ofgoods that the public accommodation has typically provided. In other words, a bookstore, for example, must 
278 N.C.J.L.&TECH. [VOL.8:273 
Third, discrimination includes failure of a public accommodation to take necessary steps to ensure disabled personsare not denied services or segregated
because there are no auxiliaryaids or services available at the accommodation.26 Providing auxiliary aids or services is not necessary when such a provision
would fundamentally alter the goods or services of the accommodation, or would result in an undue burden.27 However, the auxiliary aid or services requirement
is most concerned with ensuring the public accommodation communicates effectively withcustomers.28 For example, if a restaurant server is available to
read the menu to blind patrons, failing to provide a menu printed in Braille is not discrimination under Title III.29
Finally, discrimination includes a public accommodation’s failure to remove structural barriers when removal is possible.30Removal of barriers may require
any number of actions, including installation of a ramp, rearranging tables or chairs, or repositioning telephones.31 For example, existing and new banks
would be 
make its facilities and sales operations accessible to individuals with 
disabilities, but is not required tostock Brailledor large print books. Id. 
2642 U.S.C. § 12182(b)(2)(A)(iii). 
27Id. (stating the provision of auxiliary aidsand services is required “unlessthe entity can demonstrate that taking suchsteps would fundamentally alter
thenature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in anundue burden”). 
28 56Fed. Reg.35,544, 35,566 (July 26, 1991)(codified at 28 C.F.R. pt. 36) (“The auxiliary aid requirement is a flexible one. A public accommodation can
choose among various alternatives as long as the result is effective communication.”). 
29Id. As notedby the Department of Justice:
[A]
restaurant wouldnot berequired toprovide menus in Braille for patronswhoare blind, if the waiters in the restaurant are madeavailable toread the menu.
Similarly, a clothingboutique would notbe required tohave Brailledprice tags if sales personnel provide price information orally upon request; and a bookstore
would not be requiredto make available a signlanguage interpreter, because effectivecommunication canbe conducted bynotepad.
Id. 
3042 U.S.C. § 12182(b)(2)(A)(iv) (2006). 
31See 28 C.F.R. § 36.304(b) (2000). Additional examples of actions whichmay be required to remove barriers include: making curb cuts insidewalks and
SPRING 2007] Amending the ADA following Target
required to adjust the height of ATMs to make them accessible topeople in wheelchairs.32 However, an existing bank’s need to remove barriers will be assessed
in light of the expense associated with such an alteration, while new banks would have to makeATMs “readily accessible to and usable by persons with disabilities.”33
In addition to defining what constitutes discrimination by a public accommodation, Title III also lists twelve general categories34 qualifying as public
accommodations for purposes of the statute, to the extent that their operations “affect commerce.”35The categories include a variety of brick and mortar
structuresranging from hotels and stores to schools and fitness centers.36However, Title III does not expressly include websites as places of public accommodation.37
entrances, repositioning shelves, addingraised markings on elevator control buttons, installing flashing alarmlights, widening doors, installing offsethinges
to widen doorways, eliminating a turnstile or providing an alternative accessible path, installing accessible door hardware, installing grab bars in toilet
stalls, or rearranging toilet partitions to increase maneuvering space. Id.
32 56 Fed. Reg. at 35,568. 
33Id.(internal quotes omitted). 
34See 42 U.S.C. § 12182(a) (2006). 
3542 U.S.C. § 12181(7) (2006). 
36Id.
37 It should benoted that Congress has amended other Federal statutes toapply to websites and other forms of information technology. See, e.g.,The Rehabilitation
Act of 1973(29 U.S.C. §794d), as amended bythe Workforce Investment Act of 1998 (Aug. 7,1998). The amended RehabilitationAct requires Federal departments
and agencies to make their “electronic and information technology” accessible to “individuals with disabilities who are members of the public seeking information
or services from a Federaldepartmentor agency.” 29U.S.C. § 794d(a)(1)(A)(2006).
280 N.C.J.L.&TECH. [VOL.8:273 
III.
INTERPRETATIONS OF“PLACE OF PUBLIC ACCOMMODATION” 
Three cases38 were instrumental to the Target court’s holding that Target.com was subject to Title III in certain contexts.39 Thesecases, when combined
with Target, illustrate a split among circuits in the interpretation and application of the place of public accommodation standard. 
A. 
Pre-Target Decisions 
1. 
Stoutenborough v. National Football League, Inc.In Stoutenborough, a group of hearing impaired individuals sued the National Football League (NFL) claiming
“the [NFL’s] ‘blackout rule,’ which [prohibited] the live local broadcast of homefootball games . . . before game-time, [violated] the [ADA].”40 The plaintiffs
stated the blackout rule discriminated against them “in adisproportionate way because they [had] no other means of accessing the football game[s] ‘via
telecommunicationtechnology.’”41 For this reason, the plaintiffs claimed they werebeing denied the “substantially equal” access the ADA required.42Additionally,
the plaintiffs argued the services provided through 
the television broadcast were offered as “services, benefits, orprivileges in places of public accommodation.”43
38See Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312
(S.D.
Fla. 2002), appeal dismissed, 385 F.3d 1324 (11thCir. 2004); Rendon v.Valleycrest Prod., Ltd., 294F.3d1279(11th Cir. 2002); Stoutenboroughv.Nat’lFootball
League, Inc., 59 F.3d 580 (6th Cir.1995). 
39SeeTarget, 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006).[T]o the extent . . . Target.com impedes the full and equal enjoyment ofgoods and services offered
in Target stores, the plaintiffs state a[Title III] claim . . . . To the extent that Target.com offers information and services unconnected to Target stores,
which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffsfail to state a claim under Title III of the ADA. 
Id.
40Stoutenborough, 59 F.3d at 582. 
41Id.
42Id.
43Id.
SPRING 2007] Amending the ADA following Target
The Sixth Circuit held that the plaintiffs failed to state a claim for relief, and granted the NFL’s motion to dismiss.44 Persuaded by the defendants’45
argument, the court held the blackout rule wasnot discriminatory because “it [applied] equally to both the hearing and hearing-impaired.”46 Since all viewers
were prevented from watching a blackout game, the plaintiffs did not have a viable discrimination claim.47
Significantly, the Sixth Circuit found none of the defendants were entities to which Title III applied.48 Moreover, the plaintiffs sought a service, a
televised broadcast, which in no way involved a place of public accommodation.49 The game the plaintiffs wantedto view was played in a place of public
accommodation;50however, the challenged service (i.e., the television broadcast) wasnot provided by the place of public accommodation. Therefore, Title
III did not apply.51
44Id. at 584. 
45 The Cleveland Browns, a number of broadcasting companies, and severaltelevision stations were alsodefendants in this suit. 
46 Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 582 (6thCir. 1995) (emphasis added). 
47Id. The court also adopted the defendants’ argument that it was irrelevantwhether a blacked outgame was broadcast via radio (i.e., giving the hearinganother
option to a televised broadcast), stating: “[T]he [blackout] rule . . .impacts only the televised broadcast of home football games.” Id. Inaddition,the
courtnoted that “the advent ofdevices thatmake radio transmissionaccessible to persons with hearing impairments, [make it possible] for thehearing and
the hearing-impaired populations [to] attain equal footing as theradio broadcasts become available toboth.” Id.
48Id.at 583 (citing 42 U.S.C. § 12181(7) (1994))(“[N]one of the defendantsfalls within any of the twelve ‘public accommodation’ categories identified in
the [ADA].”). 
49Id.(“[T]he ‘service’ . . . does not involve a ‘place of publicaccommodation.’”). 
50 Here, the football stadium where the Cleveland Browns played. 
51 Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6thCir. 1995). None of the parties the plaintiffs filed suit against fell within thedefinition
of a “place of public accommodation.” See id.Although the footballgame was played in a stadium,which would be a place of publicaccommodation, it was the
restrictions on the broadcast which the plaintiffs challenged. Thus, because the entities offering (or not offering) the broadcast were not denying equal
access to a place of public accommodation, the
282 N.C.J.L.&TECH. [VOL.8:273 
2.
Rendon and Access Now, Inc.In Rendon v. Valleycrest Productions, Ltd.,52 a group of hearing and mobility impaired plaintiffs brought suit against Valleycrest
Productions Limited and American Broadcasting Company (ABC). The Rendon plaintiffs, who were either hearing impaired or suffered from a condition that
limited their finger mobility,claimed the defendants’ telephone selection process for “Who Wants to be a Millionaire” (“Millionaire”) violated Title IIIbecause
it tended to screen out disabled people.53 Specifically, the selection process required potential contestants to call a toll-freetelephone number and use
a telephone keypad to answer a series of pre-recorded questions.54The district court dismissed the plaintiffs’ complaint because the telephone selection
process was “not conducted at a physical location.”55 For this reason, the selection process was not a place of public accommodation covered by Title III.56
Therefore, the issue on appeal in Rendon was whether Title III could be applied to a process preventing the disabled from participating in competitions
held in a public accommodation.57On appeal, the Rendon defendants asserted the screening hotline was not a public accommodation or a “physical barrier
toentry erected at a public accommodation.”58 Furthermore, the
hotline did not prevent the plaintiffs from gaining access to thepublic accommodation—the studio where the show was recorded.59
plaintiffs’ case failed to state a claim as it related toboth the NFL and the 
broadcasting companies. See id.52 294 F.3d1279, 1280 (11th Cir.2002). 53Id. at 1281. 54Id. at 1280–81. 55Id. at 1281. 56Id.57Id. at 1282. 58 Rendonv.Valleycrest
Prod., Ltd., 294F.3d 1279, 1283 (11th Cir.2002) 
(emphasis added). 
59Id.
SPRING 2007] Amending the ADA following Target283
The defendants argued that, because the screening process posed no physical barrier, it could not be subject to a Title III claim.60
The court of appeals rejected the defendants’ argument,61holding that Title III also applies to “intangible barriers,” which include discriminatory procedures
that restrict a disabled person’s “ability to enjoy the defendant entity’s goods, services andprivileges.”62 Pointing to decisions from other circuits,63
the Eleventh Circuit held that the telephone selection process used by the defendants was an intangible barrier64 depriving the plaintiffs of the “opportunity
to compete for the privilege of being a contestant on Millionaire,”65 which occurred at a place of public accommodation.66 The telephone screening process
was an intangible barrier to a privilege offered by a place of public accommodation; thus, the process was subject to Title III.67
Access Now v. Southwest Airlines, Co. was the first judicial opinion that addressed Title III in the context of business
60Id. The defendants also attempted to use Stoutenborough to assert that the ADA should not apply to television broadcasts because they are not a service
“operate[d] from a ‘place’ of ‘public accommodation.’”See id.at 1284 (quoting Stoutenborough, 59 F.3d at 583). The court rejected this argument stating
the Rendon plaintiffs did not bring suit toview a show. Id. Instead, the plaintiffswanted the privilege of competing on a show in a place of publicaccommodation.
See id.
61See id. at 1283–84. 
62Id. at 1283 (citing 42U.S.C. §12182(b)(2)(A)(i)–(ii) (2000)) (emphasisadded). 
63Seeid. at 1285 (citing Ferguson v. City ofPhoenix,157 F.3d668 (9thCir. 1998);Bartlettv. N.Y.State Bd. of LawExam’rs, 226 F.3d 69 (2ndCir. 2000))(arising
under the ADA wherediscrimination occurred “at a distance”). 
64Examples include discriminatory screening mechanism, policy or procedure. 
65Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279, 1286 (11thCir. 2002). Inreaching this decision, the court rejected the defendants’ implied assertion
that “so long as discrimination occurs off site, it does not offend Title III.” Id. at1285. The court noted that readingTitle III to allow offsite discriminationwould
be “misreading the relevant statutory language” and “contradicting numerous judicial opinions dealing with discrimination perpetrated ‘at a distance.’”
Id.
66Id. at 1283. 
67Id. at 1286. 
284 N.C.J.L.&TECH. [VOL.8:273 
websites.68 The plaintiffs, Access Now, Inc., a non-profit accessadvocacy organization for disabled individuals, and a blindindividual named Robert Gumson,
filed suit against Southwest Airlines (“Southwest”) for violation of Title III on the grounds that the company’s website, southwest.com, made its “virtual
ticket counters” inaccessible to blind people.69 The plaintiffs noted thatassistive technology, which can aid blind people in navigating the Internet,
is readily available through various types of computer software.70 The effectiveness of an assistive technology requires that a website be programmed to
interact with the technology,71 but southwest.com and Southwest’s virtual ticket counters were not programmed to be accessible to blind people who rely
on assistive technologies.72 The plaintiffs claimed the denial of access deprivedthe blind of equal access to the airline’s virtual ticket counters, which
they argued were places of public accommodation.73
The Access Now court cited two reasons for dismissing the plaintiffs’ complaint. First, southwest.com74 was not a place of public accommodation under Title
III.75 The court pointed to the twelve listed categories of public accommodation in Title III,76stating that the congressional intent was for the statute
to apply 
68See Michael Goldfarb, Access Now, Inc. v. Southwest Airlines, Co.—Using the “Nexus” Approachto Determine Whether a Website Should be Governedbythe Americans
with Disabilities Act, 79 ST.JOHN’S L.REV. 1313, 1319 (2005). 
69 Access Now, Inc.v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1314 
(S.D.
Fla. 2002). 
70Id. Specifically, the plaintiffs noted assistive technologies currently madeavailable to the creators of websites by a number of computer software companies
include: voice-dictation software, voice-navigation software, andmagnification software. Id.The assistive technologies help “visually impairedpersons innavigating
through varying degrees of text and graphics found on different websites.” Id. Inaddition, the plaintiffs notedthat over 15% of the visually impairedpeople
in the United States use the Internet. Id.
71See id. at 1314–15. 
72Access Now, 227 F. Supp. 2dat 1316. 
73Id. at 1315. 
74 Reference to southwest.com includes the website’s “virtual ticket counters,” 
in dispute inAccess Now. 75 Access Now, Inc.v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1314 
(S.D.
Fla. 2002). 76Id.at 1317 (citing 42 U.S.C. § 12181(7) (2000)). 
SPRING 2007] Amending the ADA following Target
only to “access tophysical, concrete places of public accommodation.”77 Second, there was no nexus between southwest.com and a place of public accommodation.78
Becausesouthwest.com and the virtual ticket counters were not “in any particular geographic location,” the plaintiffs could not prove a nexus between a
challenged service and “a specific, physical, concrete space.”79 Thus, the Eleventh Circuit distinguished the telephone screening process in Access from
Rendon because southwest.com was not a physical space under Title III.80
77Id. at 1318–19 (emphasis added) (“[T]his [c]ourt cannot properly construe‘a place of public accommodation’ to include Southwest’s Internet website, southwest.com”).

78Id. at 1321. Title III explicitly excludes commercial aircraft from thedefinition of a public accommodation. See 42 U.S.C. § 12181(10) (2006). Airtravel
was excluded becauseit was protected under a different statute, the Air Carrier Access Act of 1986. See National Council on Disability, When theAmericans
withDisabilities Act Goes Online: Application of the ADA to the Internet and the Worldwide Web (July10, 2003), http://www.ncd.gov/ newsroom/publications/2003/adainternet.htm
(on file with the North CarolinaJournal of Law & Technology);see also H.R. Rep. 101-485, Part II at 87,1990 WL 125563. 
79 Access Now, Inc.v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1321 
(S.D.
Fla. 2002) (indicating that, if the plaintiffs had shown the website impededaccess to an actual airline ticket counter or travel agency, then there might
havebeen a nexus). 
80Id. at 1320–21 (“[T]he Supreme Court and the Eleventh Circuit havebothrecognized that the Internet is ‘a unique medium—known to its users as ‘cyberspace’—located
inno particular geographic location but available toanyone, anywhere in the world, with access to the Internet.’”) (citationsomitted). 
286 N.C.J.L.&TECH. [VOL.8:273 
B. 
Target and the Ninth Circuit In the Target case, Bruce Sexton, a blind man, filed suit against Target for discrimination in violation of federal and state
laws.81 In their complaint, the plaintiffs claimed that because Target’swebsite, Target.com, was inaccessible to the blind, they were “denied full and
equal access to Target stores” in violation of Title III.82The Ninth Circuitdenied Target’s motion to dismiss based on the company’s interpretations ofRendon,
Access Now, and Stoutenborough. In its motion, Target first argued that the ADA requires actionable discrimination to occur on the premises of the public
accommodation (“on-site”).83 Second, Target argued thediscrimination must have the effect of denying physical entry to the public accommodation.84In response,
the Ninth Circuit first noted that Title III prohibits disability-based discrimination “‘in the full and equal enjoyment ofthe goods, services, . . . or
accommodations of any place of public accommodation.’”85 The defendant’s interpretation of the statute, requiring discrimination to occur on-site or in
a place of public accommodation, “contradict[ed] the plain meaning of the statute.”86 For this reason, the Ninth Circuit held discrimination need not occur
on-site for the plaintiffs’ claim to be viable.87Second, the Ninth Circuit held that actionable discrimination 
under Title III is not limited to denial of physical access to public accommodations.88 Title III encompasses more than “mere 
81Target, 452 F. Supp. 2d 946, 949 (N.D. Cal. 2006). This RecentDevelopment will only examine the plaintiffs’ claims for violationof federallaw. 
82Id. at 949–50. 
83Id. at 953. 
84Id.(stating that the defendant’s contention was that precedent “stand[s] for the proposition that the ADA prohibits only discrimination occurring on
thepremises of a place of public accommodation, that ‘discrimination’ is limited to denial of physical entry to, or use of, a space”). 
85Id. (quoting 42 U.S.C. § 12182(a) (2000)) (emphasis in original). 
86Id.
87Target, 452 F. Supp. 2d946,953(N.D. Cal. 2006). 
88Id.
SPRING 2007] Amending the ADA following Target
physical access,” reaching “actions or omissions which impair a disabled person’s ‘full enjoyment’ of services or goods of acovered accommodation.”89 If
a nexus exists between a challenged service and a place of public accommodation, a claim may beactionable even when the challenged service does not prevent
physical access to a public accommodation.90 Thus, the Targetcourt found the discrimination actionable because there was a nexus between the challenged
service, Target.com, and the plaintiffs’ full enjoyment of the services of the public accommodation, Target’s brick-and-mortar stores.91
C. 
How is Target Different?—Reconciling the Split Target is the first published decision allowing a Title III claim of website inaccessibility against a private
entity to proceed against a defendant.92 The Ninth Circuit previously declined to expand the meaning of a “place of public accommodation” beyond the stated
categories noted in Title III—a place of public accommodation is a“physical place.”93 InTarget, the defendant relied on Stoutenborough, Rendon, and Access
Now to argue that a websitewas not an actionable place of public accommodation under Title III.94 Applying this “physical place” approach to Target, theNinth
Circuit might not have entertained a Title III claim against a website. However, the Ninth Circuit allowed Title III claims when there is “unequal access”
to a public accommodation’s service, if aplaintiff can prove a nexus between the service and the public 
accommodation.95 Thus, because the Target court did find a nexusbetween the services offered by a website and the public 
89Id. at 954. 
90See id. at 953–54. 
91Id. at 955 (“[The] inaccessibility of Target.com denies the blind the ability to enjoy the services ofTarget stores.”). 
92 ROZYCKI & MUNGERSON, supra note 10. 
93Id. at 952 (citing Doe v. Mutual ofOmaha Ins. Co., 179 F.3d 557, 559 (7thCir. 1999); Carparts Distrib. Ctr., Inc. v. Auto. Wholesalers Assoc. of New
England, Inc., 37 F.3d 12, 19–20 (1st Cir. 1994)) (“The Ninth Circuit has declined to join those circuits which have suggested that a ‘place of publicaccommodation’
may have a more expansive meaning.”). 
94Target, 452 F. Supp. 2d946,953(N.D. Cal. 2006). 
95Id. at 952. 
288 N.C.J.L.&TECH. [VOL.8:273 
accommodation with which the website was “heavily integrated,” the plaintiffs’ claim was viable.96
The Target court stated three reasons for how its decision could be reconciled with the Title III precedentsto find a nexus between Target and Target.com.
First, the court found that Target.com’sservices were offered by Target, a place of public accommodation.97 Second, even though the challenged service
did not prevent physical access to Target stores, inaccessibility toTarget.com did affect equal enjoyment of services offered by Target.98 Finally, there
was a connection between the challengedservice, Target.com, and the Target stores.99
In Stoutenborough, there was no Title III liability because, although the game the plaintiffs wished to watch was played in a place of public accommodation,
the actual service100 “[did] notinvolve a ‘place of public accommodation.’”101 The broadcast may have been “offered through the defendants,” but “not as
a service of [a] public accommodation.”102 Target tried to argue that, like the NFL in Stoutenborough, Target.com was a service offered through, but not
by, Target.103
The Ninth Circuit, however, found that “many of the benefits and privileges of [Target.com] are services of the Target stores.”104Unlike the Sixth Circuit
in Stoutenborough, where the public accommodation, a stadium, was not offering the challengedbroadcast, Target stores were offering the services of Target.com.105
Because the challenged service in Target was“heavily integrated with the brick-and-mortar stores and operate[d] 
96Id. at 955. 
97Id. at 954. 
98Id.at 953, 955. 
99Target, 452 F. Supp. 2d946,954(N.D. Cal. 2006). 
100 The actual service was the actual television broadcast. 
101 Stoutenborough v. Nat’l Football League, Inc., 59 F.3d580, 583(6th Cir.1995). 
102Id. at 583. 
103Target, 452 F. Supp. 2d at 954.
104Id.
105Id. at 954–55. 
SPRING 2007] Amending the ADA following Target289
in many ways as a gateway to the stores,” Target.com was aservice offered by Target.106
In Rendon, the Eleventh Circuit Court of Appeals held that a challenged service—a telephone screening process—occurring outside a place of public accommodation
could be in violation of Title III without denying physical access to the accommodation.107Under Rendon, intangible barriers may diminish the “full and
equal enjoyment” of the services or privileges of a place of public accommodation, and thus, are a sufficient basis for a claim under Title III.108 In
Target, the Ninth Circuit found that, like the telephone screening process in Rendon, the “inaccessibility ofTarget.com denies the blind the ability to
enjoy the services ofTarget stores.”109
Unlike Stoutenborough and Rendon, Access Now did not involve a physical place of public accommodation. The Access Now plaintiffs argued that inaccessibility
to a website, southwest.com, was depriving blind people access to “virtual ticket counters.”110 The plaintiffs did not demonstrate the website “impeded”
access to a physical location.111 Since there was no potential link to a physical place of public accommodation, the court did not find a nexus between
the challenged services of 
106Id. at 955. Inrecounting the background ofthe case, the court alsonoted:
Target.com is a website owned and operatedby Target. By visiting 
Target.com, customers can purchase many of the items available in
Target stores. Target.com also allows a customer to perform functions
related to Target stores. For example, through Target.com, a customer 
can access information on store locations and hours, refill a
prescription or order photoprints for pick-up at a store, and print
coupons to redeem at a store. Id. at949.107 Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279, 1283–84 (11th Cir. 
2002). 
108Id. at 1286. 
109Target, 452 F. Supp. 2d946,955(N.D. Cal. 2006). 
110Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1321 
(S.D.
Fla. 2002). 
111Id. (“[B]ecause the Internet website, southwest.com, does not exist in any particular geographicallocation, Plaintiffs are unable todemonstrate thatSouthwest’s
website impedes their access to a specific, physical, concrete spacesuch as a particular airline ticket counter or travel agency.”). 
290 N.C.J.L.&TECH. [VOL.8:273 
southwest.com and a Title III “public accommodation.”112 InTarget, by contrast, the physical presence of Target stores and the integration between the
stores and Target.com provided grounds for a nexus, thereby giving the plaintiffs a viable Title III claim.113
The Target court was the first to bring business websites within the reach of Title III by finding a nexus between Target.com and Target stores.114Target,
however, is a fact-specific holding, making it difficult to predict its impact on other cases involvingwebsites as places of public accommodation. Part
IV examines the implications and scope of the Target decision, concluding that, after seventeen years, Title III should be amended by Congress to address
websites. By addressing these guidelines now, Congress will simply be acknowledging the pervasive role of the Internet and join other nations that have
already addressed websites in comparable statutes.115 Furthermore, amending the ADA will obviate the need for disability advocacy groups and small businesses
to rely on organized litigation to answer the question:to which websites does Title III apply? 
IV.
TITLE III AND BUSINESS WEBSITES POST-TARGET
Although the Ninth Circuit has not yet determined whether Target violated Title III for failure to make Target.com accessible to the blind, allowing the
claim to proceed is significant because it demonstrates judicial willingness to bring websites within thejurisdiction of Title III.116 However, while the
Ninth Circuit found a nexus in Target because of the integrated services of Target.com 
112Id.
TheAccess Now plaintiffs did not allege orprove there was a nexus between southwest.com and Southwest’s physical ticket counters. The plaintiffs only claimed
southwest.com impeded their access to the company’s “virtual ticket counters.” See id. (“Plaintiffs are unable to demonstrate that Southwest’swebsite impedes
their access to a specific, physical, concrete space such as aparticular airline ticket counter or travel agency.”). 
113Target, 452 F. Supp. 2d at 954–55. 
114See ROZYCKI & MUNGERSON, supra note 10. 
115See National Council on Disability, When the Americans with DisabilitiesAct Goes Online: Applicationof the ADA to the Internet and the Worldwide Web
(July 10, 2003), http://www.ncd.gov/newsroom/publications/2003/adainternet.htm (on file with the North Carolina Journal of Law & Technology). 
116See Target, 452 F. Supp. 2d 946, 955–56(N.D. Cal. 2006). 
SPRING 2007] Amending the ADA following Target
and Target stores, it did not state a rule regarding the degree ofintegration necessary to find a nexus.117
The Target court opened the door for Title III claims related tobusiness websites by establishing the other end of the spectrumfrom the Eleventh Circuit
in Access Now,where the court found no nexus because no public accommodation was involved.118 Indefining the other end of the spectrum, the Ninth Circuit
addressed only the facts of Target and did not address the potential fact scenarios that are likely to arise in the area between the spectrum’s endpoints.
The “heavily integrated” and “gateway to the stores” language of Target provides an unformulated standard and will require other circuits to define points
on the continuum between the endpoints as they address future Title III claims.119
A. 
The “Heavily Integrated” Facts of TargetThe degree of integration between the services of Target storesand Target.com was crucial to the Target decision.
Target shoppers have the ability to use Target.com to get information about locations and hours of operation, order prescription refills,order photos online,
or print coupons to redeem at a store.120The Ninth Circuit’s decision implies that websites of other major retailers, such as Wal-Mart and K-Mart, may
have a sufficient nexus to brick-and-mortar stores to support Title III claims.121 It is not unreasonable to anticipate that other circuitswill be willing
to adopt an approach similar to the Target court— finding websites of large retailers have a nexus to the storefronts and, therefore, are actionable under
Title III. However, the 
extension of the Ninth Circuit’s reasoning to retailers with websiteservices less integrated to storefronts remains unclear. 
117Id. at 955(stating the website in Target’s case was “heavily integrated” tothe actual stores, and that it served as a “gateway to the stores”). 
118See Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312,1321 (S.D. Fla. 2002). 
119Target, 452 F. Supp. 2d at 955.
120Id. at 949. 
121 This outcome assumes individual courts would be willing to find the same nexus as the courtdid inTarget. 
292 N.C.J.L.&TECH. [VOL.8:273 
B. 
How Significant Does the Integration Need to Be? Over the last few years, the evolution of the Internet has transformed the way many companies do business.122
For example, numerous businesses operate exclusively online, selling products from their website and keeping inventory at a warehouse.123Moreover, most
traditional retailers also have websites that supplement their physical presence by offering the same inventory sold in their physical stores.124 While
it is difficult to predict how narrowly courts will interpret and apply the Ninth Circuit’sintegration standard, if left to judicial discretion, it is
possible that many small businesses with websiteswill be found to have a nexus between their storefronts and their websites—opening these businesses to
unanticipated Title III liability. The Target holding was limited to cases where the website offers information and services connected to storefronts.125
Based on the required connection, it seemsan online-only retailer would not be vulnerable to a Title III action against its website.126 Sincethe warehouse
is not a place of public accommodation fallingwithin any of the twelve enumerated categories in Title III,theconnection or integration necessary to create
a nexus would not exist.127 The Ninth Circuit, however, did not indicate the degree of 
connection or integration necessary for a nexus to exist between a website and a storefront.128
122 As of 2005, “online retailing”had beenin existence for about ten years with online retail sales reaching $89.0 billion, excluding travel. See NationalRetail
Federation,Online Retail Sales, Profitability ContinueClimb, SHOP.ORG/FORRESTERRESEARCH, May 24, 2005, http://www.shop.org/press/05/052405.asp (onfile
with the North Carolina Journal of Law & Technology). 
123 Examples include Amazon.com, 1-800-FLOWERS.COM, Drugstore.com,eBay, Netflix, and Overstock.com.
124 In other words, there are no integration of services between the website and the brick-and-mortar presence (unlike the situation inTarget).
125Target, 452 F. Supp. 2d 946, 965 (N.D. Cal. 2006) (“To the extent thatTarget.com offers information and services unconnected to Target stores, whichdo
not affect the enjoyment ofgoods and services offered in Target stores, the plaintiffs fail[ed] to state a claim under Title III of the ADA.”). 
126Seeid. at 954–55. 
127See 42 U.S.C. § 12181(7) (2006). 
128Target, 452 F. Supp. at 955. 
SPRING 2007] Amending the ADA following Target293
While it is clear fromTarget that heavily integrated services will meet the nexus requirement, the court implies that anyconnection between a store and
website that affects the enjoymentof the goods and services of a store may be sufficient to find a nexus. There are numerous small businesses with websitesoffering
similar types of information and benefits that Target.com offers to its customers. For example, most retailers with websitesprovide information regarding
store location and hours of operation. In addition, like Target.com, many retailers offercoupons through their websites which can be redeemed in stores.

Providing store location and hours of operation through a website may not constitute information and services affecting the enjoyment of the goods and
services of the actual store. Using Target as an example, a small retailer that offers coupons to customers through a website not accessible to the visually
impaired could easily be seen as affecting the enjoyment of the goods and services of the brick-and-mortar store. Ultimately, the outcome of Title III’s
application to small businesses for inaccessible websiteswill depend on judicial interpretation ofTarget. 
While the issue has not yet been litigated, the Target plaintiffsargued that the costs associated with making a website user-friendly for the blind are
“not economically prohibitive.”129Costs of making websites accessible to the blind may be the main issue for large-scale retailers,130 but the costs are
only one of the concerns for small businesses faced with Title III claims. Another
129Id. at 949. 
130Inits Fiscal Year 2007, Target hadtotal revenues of $59.5 billionand expenses of $54.4 billion. SeePress Release, Target Corporation, TargetCorporation
Fourth Quarter EarningsPer Share $1.29(Feb. 27, 2007), http://investors.target.com/phoenix.zhtml?c=65828&p=irol-newsArticle&ID= 967693&highlight= (on file
with the North Carolina Journal ofLaw & Technology). Target reportedly received an estimate of $90,000 for thenecessary alterations to make Target.com
fully accessible for disabledpeople. See JohnGrossman,Welcome! No, Not You:American business moves fitfullytoward website accessibility for the disabled,
INC.COM, Feb. 2007, http://www. inc.com/magazine/20070201/features-criterion-508-accessibility.html (last visited Mar. 6, 2007) (on file with the North
Carolina Journal ofLaw & Technology). This makes the estimated one-time cost of these accessibility changes less than 0.002% ofTarget’s annual expenses.

294 N.C.J.L.&TECH. [VOL.8:273 
challenge for small businesses is understanding this requirement in the first place. As the ADA and Title III stand today, there is no language that provides
notice to small business owners that theirwebsites must be made accessible to the blind. Further, in the wake of Target, it is not clear how the different
circuits will choose to apply Title III to business websites. However, without theclarity provided by statutory language, even if circuits aligned uniformly
on the application of Title III to websites, through no fault of their own, the uninformed, small business person would face a high risk of litigation
for ignorance of the common law. 
V.
PROVIDING UNIFORMFUTURE TREATMENT BY ADDRESSINGWEBSITES INTITLEIIITODAY
A. 
Websites as Places of Public Accommodation In order to understand why Congress should act now to amend Title III to address websites, it is first necessary
to examine how the connection between websites and Title III has been viewed by the government since the ADA was enacted seventeen years ago. Evidence
from as early as 1996 indicates that, on behalf of their constituents, senators were communicating with theDepartment of Justice regarding website accessibility
for thedisabled.131 In 1996, the Internet was in its initial phases of becoming a commonly-used public resource, so it is understandable that Congress
chose to wait for the Internet to develop further before conducting an formal inquiry on adding websites to the language of the ADA.
Congress undertook its first organized inquiry on this issue in 2000.132 During that inquiry, the House Subcommittee on the
131 Letter from the Assistant Attorney General for Civil Rights to Senator Tom Harkin, (Sept. 9, 1996), http://www.usdoj.gov/crt/foia/tal712.txt (on file
withthe North Carolina Journalof Law & Technology).
132Hearingon the Applicability of the Americans withDisabilities Act (ADA) to Private Internet Sites Before the House Subcommittee on the Constitutionofthe
House Committee on the Judiciary, 106th Congress (2000) [hereinafterHearing],available at http://commdocs.house.gov/committees/judiciary/ hju65010.000/hju65010_0f.htm
(on file with the North Carolina Journal of Law & Technology). 
SPRING 2007] Amending the ADA following Target
Constitution heard testimony from a number of legal andtechnology experts on the potential ramifications of extending Title III to apply to private websites.133
In addition, the hearings noted that the Department of Justice had already independently concluded that the ADA applied to private websites.134 After the2000
hearing, Congress presumably opted not to add language addressing websites to the ADA, and has not made another formalinquiry into the issue over the past
seven years. 
Access Now and Target demonstrate that the issue of website inaccessibility for the disabled has remained a topic of interest for both the general public
and the disability advocacy communitysince the Congressional hearings in 2000.135 The National Council on the Disability (NCD) was established as an independent
federal agency in 1998 “to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilit[ies].”136
In 2003, the NCD analyzed whether the ADA applied to commercial and other private sector websites.137Ultimately, the NCD concluded that the ADA is applicable
to these websites and that the Department of Justice was in a position tolead efforts to propose a change.138 In December 2006, after Target, the NCD recommended
a number of action items related to identified technology trends, including “ensur[ing] that access to 
133Id.
134Id.(opening statement of Rep. Charles T. Canady, Chairman, Subcomm.on the Constitution). 
135The first known complaint regarding website accessibility was when National Federationof the Blindbrought suit against America Online in1999. See LexFrieden,National
Council onDisability, When the Americans withDisabilities Act Goes Online: Applicationof the ADA to the Internet and the Worldwide Web (2003), http://www.ncd.gov/newsroom/publications/2003/adainternet.htm
(last visited Mar. 6,2007) (onfile with the NorthCarolina Journal of Law & Technology). Ultimately, the complaint was voluntarilydismissed, andthe parties
entered into an agreement. 
13629 U.S.C. § 780(a)(2)(A) (2006). 
137See Frieden, supra note 135.
138Id.
296 N.C.J.L.&TECH. [VOL.8:273 
the Internet and other virtual environments is provided, as it has been to physical places of public accommodation.”139
The ten-year documented history of interest in website accessibility under the ADA and the evidence that litigation regarding website accessibility for
the disabled continues to gain momentumindicate that this issue is not one likely to dissipate with time. Rather, it must again be formally reviewed by
Congress. 
B. 
Why Now? Why Congress? Recommendations by the NCD since the 2000 hearings, as well as recent activity in the courts related to website accessibility forthe
disabled,140 support a call for Congress to consider incorporating language addressing websites into Title III. Examining why Congress did not take action
to incorporate websites into the “places of public accommodation” list in 2000 makes clear why taking such action now is appropriate. First, the2000 hearings
occurred towards the end of the dot-com boom.There was a feeling, as evidenced by some of the testimony at the hearings, that placing accessibility standards
on websites would hinder the continuing growth of e-commerce and the proliferation of the Internet which was already waning.141 In addition, while not
clear from testimony, Congress may have been wary of the future of the Internet as signs of a downturn in the dot-com market started to appear. Perhaps
Congress believed e-commerce might not recover from severe market fallout, and the Internet would return to pre-boom popularity levels—no longer a formidable
commerce
engine worthy of Title III consideration. While Congress optednot to add language to the Title III after the 2000 hearings, this 
139 JOHN VAUGHN,NATIONAL COUNCIL ONDISABILITY,OVER THE HORIZON:POTENTIALIMPACT OFEMERGING TRENDS ININFORMATION ANDCOMMUNICATION TECHNOLOGY ON DISABILITY
POLICY AND PRACTICE 41 (Dec.19, 2006), http://www.ncd.gov/newsroom/publications/2006/pdf/emerging_ trends.pdf (on file withthe NorthCarolina Journal of
Law & Technology). 
140SeeTarget, 452 F. Supp. 2d 946 (N.D. Cal. 2006); Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla.2002). 
141Hearing, supranote 132 (statement ofDr. Steven Lucas, ChiefInformation Officer and Senior Vice President, Privaseek, Inc.). 
SPRING 2007] Amending the ADA following Target
decision should not be seen as the final word of Congress on the importance of website accessibility as it relates to Title III, asmuch has changed since
2000. 
The time is right for Congress to add language addressing websites to Title III for several reasons. First, as it relates to the lifetime of the Internet,
a substantial amount of time has passed since the 2000 hearings. The continued growth of e-commerce and the proliferation of the Internet are not in doubt
now as they were in 2000. Second, the issue of website accessibility for the disabled has become an organized movement with disability advocacygroups,
and, as a result, it is an issue courts will repeatedly address in the near-term. Finally, as litigation in the area of Title III claimsrelated to websites
continues, it is the optimal time for Congress to provide small business owners with a statutory answer for whether their websites need to be ADA compliant.
While the Targetdecision defined one end of the spectrum for applying Title III to business websites, the spectrum does not provide small business owners
with sufficient notice as to how or whether their websitesmust be changed, if at all. Moreover, small business owners do not have the legal resources of
a multi-billion dollar corporation to advise them on how to comply with the unclearTarget standard inorder to avoid Title III liability. By waiting for
the Supreme Court to address and possibly clarify the Target–Access Now spectrum, Congress is exposing otherwise ADA-compliant businesses to costly and
unnecessary litigation. 
C. 
Proposed Language Changes There are three primary ways Congress can alter the language of Title III to address websites. First, exclusionary language couldbe
added to the end of 42 U.S.C. § 12181(7) stating: websites are not considered public accommodations for purposes of Title III. Inthe alternative, Congress
could add language allowing application 
of Title III to websites having specific relationships or affiliationswith a place of public accommodation.142 Finally, language could 
142 Congress could also choose to findthat all private websites are subject to Title III as places of public accommodation. However, ifCongress chooses
to have 42 U.S.C. § 12181(7) apply toall private websites (commercial websites 
298 N.C.J.L.&TECH. [VOL.8:273 
be added to bring all business websites within the meaning of a Title III place of public accommodation, regardless of an affiliationwith a physical space.

If Congress reviews this issue and again decides to exclude websites from Title III, exclusionary language should be added to42 U.S.C. § 12181(7). However,
if Congress adopts a language change to address websites that have a connection with a place of public accommodation, the language addition will require
more explicit guidelines to avoid merely replicating the existingspectrum.
First, certain large e-commerce retailers, like Amazon.com, are not currently affiliated with a place of public accommodation, and, thus, do not share
a nexus with a public accommodation which would require Title III compliance. However, to enable e-commerce-only retailers to be free of Title III compliance
because they do not have a physical presence gives them a competitive advantage in cyberspace over retailers that do.143 More importantly, it deprives
the disabled from taking advantage of the
and personal websites), then it couldbeoverstepping the authority to enforce and enact the ADA through the Commerce Clause because many private websites
are not related to commerce in any way. See Goldfarb, supra note 68, at 1335 (stating that many non-retail and non-commercial websites that are either
personal in nature or merely provide information would probably notsatisfy the necessary relationship to interstate commerce). 
143Websites like Amazon.com do have agreements withretailers toprovidethe front-end of the virtual stores of these retailers. See Martin Wolk, Toys ‘R’
Us wins suit against Amazon.com, MSNBC.COM, Mar. 2, 2006,http://www.msnbc.msn.com/id/11641703/ (discussing Amazon.com’s “brickand-click” partnerships with
retailers) (on file with the North Carolina Journal of Law & Technology). While the storefronts of these retailers would qualify as public accommodations,
Amazon.com only provides front-end, online access to the goods of the retailers. Unlike Target’s relationshipwith Target.com, Amazon.com is a service offered
through the retailers, not by the retailers. SeeTarget, 452 F. Supp. 2d946, 954 (N.D. Cal. 2006) (comparing the Target.comand Target connection to the
NFL connection with the television broadcast inStoutenborough v. Nat’l Football League, Inc.). Thus, because Amazon.com isnot offering its own goods and
services in connection with its own publicaccommodation, the connection with a public accommodation for purposes of Title III liability does not exist.
See, e.g.,Stoutenborough v. Nat’l Football League, Inc., 59F.3d 580, 583 (6thCir.1995). 
SPRING 2007] Amending the ADA following Target
goods or services of these e-commerce-only retailers. In expanding the language of Title III to address websites affiliated with certain places of public
accommodation, language must also be added to ensure that website-only businesses, such as retailers, schools, or pharmacies, are effectively considered
places of public accommodation by the nature of their interaction with the public as one of the already enumerated entities included in 42 U.S.C. § 12181(7).

Second, Congress should include language addressing the post-Target issue of the degree of connection needed between a public accommodation and a website
to establish a nexus, and thus, subjecting the website to Title III. By adding language to 42 U.S.C. § 12181(7), Congress could take the opportunity to
redefine what constitutes the currently judicially-defined nexus toinclude any website that is affiliated with or sponsored by a place of public accommodation
as defined by the statute. This would eliminate the need to examine what offerings are on a website, and how those offerings are connected to the public
accommodationsbefore determining if the website must be Title III compliant. In addition, there would no longer be a post-Target grey area and small businesses
would be provided with a clear rule to follow when establishing a website affiliated with the business. 
If Congress chooses to offer a blanket application of Title III to websites merely affiliated with places of public accommodation, it could adopt language
putting Title III closer to the Target“connection” standard. For example, a standard that would find a sufficient nexus with a place of public accommodation
where a website offers some degree of direct shopping capabilities or coupons for use at the physical store. This standard would require setting out clear
percentages as to how much of a retailer’sproducts or services must be made available online for the website to be considered sufficiently connected to
a public accommodationfor Title III to apply. In the alternative, the standard could bebased on the percentage of a company’s sales generated through its
website. Additionally, Congress should clarify whether retailersthat offer only items such as coupons through a website, and opt not to sell goods online,
would be considered connected enough with a public accommodation for purposes of Title III. 
300 N.C.J.L.&TECH. [VOL.8:273 
The effect of this approach is likely to require far fewerwebsites to be compliant with Title III than the affiliation or sponsorship by a public accommodation
standard. Using a percentage of products, services, or sales standard enables a business to offer just under the requisite percentage of goodsonline or
limit online sales in order to avoid the Title IIIcompliance requirement. Unless the percentage hurdle is very low,144 many businesses may simply opt to
alter the amount ofproducts offered through the website so that the website falls just under the hurdle for Title III compliance. The percentage standard
lends itself to more manipulation by businesses, whereas the affiliation or sponsorship standard forces businesses to consider the inherent value of a
website to their customer relationships and revenue generation. Further enabling businesses to manipulate their need to comply with Title III runs counter
to the spirit of the ADA. 
Finally, if Congress wishes to have Title III include all websites affiliated with a business in any way, it can add business websites to the list of places
of public accommodation. This would avoid the confusion inherent in requiring a certain type of affiliation with one of the already defined places of public
accommodation. Applying Title III to all business websites will impose additional costs upon even more businesses than the preceding proposal and, for
that reason, may face more challenges from businesses. However, this would provide a standard that will be easier to apply and is consistent with the purpose
of the ADA. 
In adding language to Title III to address websites, Congress should give either a blanket exclusion to all websites or require all business websites to
comply with Title III, including e-commerceonly retailers. Either approach has the ability to provide a farclearer standard than presently exists. However,
applying Title III to business websites is the option that best embraces the purpose ofthe ADA and brings Title III into the twenty-first century. 
144 For example, five to ten percent of total products or services offered by thebusiness couldbe a low enoughhurdle such that nobusiness currently offering
asubstantial amount of products through its website would be willing tomanipulate its online product offerings down to the level necessaryto avoidhaving
to make its website Title III compliant. 
SPRING 2007] Amending the ADA following Target
VI.
CONCLUSION
Since its enactment, courts have interpreted Title III to cover services having a nexus to a place of public accommodation.145 If a service prevents disabled
individuals from taking advantage of theprivileges or equal enjoyment of the place of public accommodation, then there is a nexus. The nexus standard has
enabled courts to apply Title III to services clearly linked to astatutory “public accommodation,”146 even though the challenged services are not directly
offered by the public accommodation.147
Prior to Target, no court had allowed an inaccessibility claim against a business’s website under Title III.148 However, the Ninth Circuit found that the
connection between Target’s website and stores comprised a nexus necessary for a Title III claim.149Although the court’s decision was based on a very specific
set offacts, the Target decision had the effect of creating a nexus-spectrum for Title III lawsuits involving websites. On one end of the spectrum is the
Ninth Circuit stating a website with heavily-integrated services connected to the equal enjoyment of services ofa place of public accommodation creates
a nexus and viable Title III claim against a website.150 On the other end of the spectrum is the Eleventh Circuit’s assertion that if there is no place
of public accommodation, there is no nexus, and a Title III claim against the website is not viable.151 By not stating the minimum connection or integration
required to find the necessary nexus between a website and public accommodation for Title III to apply,
145See, e.g., Rendonv.Valleycrest Prod., Ltd., 294 F.3d 1279(11thCir.2002); Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir.1995).
But see Kolling v. Blue Cross & Blue Shield, 318 F.3d 715 (6th Cir. 2003); Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D.Fla.
2002). 
146See 42 U.S.C. § 12181(7) (2006). 
147See, e.g., Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279 (11thCir.2002). But see Stoutenboroughv.Nat’l Football League, Inc., 59 F.3d 580, 583 (6th
Cir. 1995). 
148 ROZYCKI & MUNGERSON, supra note 10. 
149Target, 452 F. Supp. 2d946,956(N.D. Cal. 2006). 
150Id.
151Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312, 1321 
(S.D.
Fla. 2002). 
302 N.C.J.L.&TECH. [VOL.8:273 
Target provides an unclear standard in a time when Title III litigation against websites appears to be gaining momentum. 
In an effort to avoid the confusion that businesses and other Title III places of public accommodation may face in the wake of Target, Congress should
amend the language of 42 U.S.C. § 12181(7) to address the issue of websites as places of public accommodation. Although Congress addressed this issue in
2000, the Internet has continued to evolve since that time, and the increased growth in website related Title III claims puts a number of small businesses
at risk for litigation because there is no clear rule. By adding language to Title III to exclude websitesexplicitly, to broaden its application to e-commerce-only
retailers and websites affiliated with a place of public accommodation, or toapply to all business websites, Congress will provide a clear answer to the
question remaining after Target: to which websitesdoes Title III apply?

-----Original Message-----
From: Ohio-talk [mailto:ohio-talk-bounces at nfbnet.org] On Behalf Of Abby Bolling via Ohio-talk
Sent: Sunday, November 22, 2015 10:19 PM
To: NFB of Ohio Announcement and Discussion List
Cc: Abby Bolling
Subject: [Ohio-talk] what the heck? how is this possible?

An article about the NFB, written by Dr. Mauer, isn't accessible! I attached the article (which is publically available through Google Scholar) Can any of you figure this one out?