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Abstract

Differences have been used throughout history to separate that which is deemed superior from that which is inferior. Disabilities, both physical and mental, are what history has often deemed a mark of the inferior. With little rationale to explain the occurrence of many disabilities, man turned to divine punishment and quasi-scientific movements to fill the gaps and explain the existence of what was assumed to be a lesser, plighted people. Our modern nation is no different and found itself, for the better half of the 20th century, enamored by the eugenics movement, satisfied with the explanation that disabled individuals were simply less-than.

Outcries for justice and equality for disabled individuals culminated in the passage of the Americans with Disabilities Act (ADA) in 1990. The ADA promised to eliminate the discrimination felt by those whom the world had largely refrained from acknowledging. While the ADA itself is divided into five titles meant to protect disabled individuals in all areas of public life, this Comment will focus specifically on Title III—the title that champions accessibility and prohibits discrimination on the basis of disability in public accommodations. Title III is quite clear on what constitutes impermissible discrimination in places of physical public accommodation, and this discrimination is quite easy to discern. For example, a too-high door threshold of a restaurant does not allow wheelchair users to pass through. However, when it comes to intangible public accommodations—websites— discrimination is neither easy to identify nor discussed by Title III.

Websites facilitate businesses—allowing whatever tangible goods are sold to reach greater audiences. Websites have become our shopping centers and our all-terrain vehicles to obtain anything from Chinese takeout to coffee tables. And with Title III’s silence, courts are split as to whether websites constitute a place of public accommodation at all. This uncertainty has been taken advantage of: A floodgate of litigation by ADA testers and firms has ensued over the accessibility of these (questionable) public accommodations, and the pockets of (largely undeserving) lawyers have been lined. The purpose of this Comment is to discuss the interplay between Title III and websites and, ultimately, persuade readers that websites do not qualify as public accommodations within the current meaning of Title III. Instead, this Comment proposes that websites remain what they have always been— helpful auxiliary devices. In doing so, the time and vast resources poured into controlling this mass litigation might actually be used on the people that Title III is meant to protect: those with disabilities.

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