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Ruling That Website Is Not An "Public Accommodation" Stands
By Dave Reynolds, Inclusion Daily Express
September 29, 2004

MIAMI, FLORIDA--A lawsuit filed by a blind man, who had claimed Southwest Airlines' website violated the 1990 Americans with Disabilities Act, has been thrown out by a federal appeals court because of procedural problems.

The 11th Circuit Court of Appeals said in its ruling Friday that the issues raised in the case "are significant", regarding the ability of people with disabilities to access Internet websites.

Robert Gumson sued Southwest Airlines, the nation's 4th largest air carrier, in 2002 because he was not able to make a reservation through the Southwest.com. Gumson uses a "screen reader" computer program that scans text information on the screen and turns it into an electronic voice. The website did not include text descriptions for visual information to make it readable by Gumson's screen reader software.

Access Now, which represented Gumson, claimed in U.S. District Court that Southwest.com is a "public accommodation" and, therefore, must be accessible under the ADA's Title III, which requires public accommodations to be accessible. That court rejected the argument, ruling that Internet websites are not covered under the anti-discrimination law because they are not physical structures.

Gumson and Access Now took the case to the appeals court.

In their decision last week, the appellate judges wrote that Access Now's argument before them was different than that presented to the district court. In the appeal, the plaintiffs argued that Southwest.com is part of the airline's overall "travel service", which is a public accommodation under the ADA.

"We are unable to reach the merits of the plaintiffs’ claim because, simply put, they have presented this Court with a case that is wholly different from the one they brought to the district court," wrote Judge Stanley Marcus for the court. "As we see it, the plaintiffs have abandoned the claim and argument they made before the district court, and in its place raised an entirely new theory on appeal -- one never presented to or considered by the trial court."

"Simply put, the plaintiffs’ appellate brief and oral argument have not alleged that Southwest.com is itself a place of public accommodation. As such, we deem this argument abandoned and do not address its merits."

The judges noted in their 28-page decision that the question of whether the ADA covers websites has yet to be properly addressed.

"In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant. The Internet is transforming our economy and culture, and the question whether it is covered by the ADA -- one of the landmark civil rights laws in this country -- is of substantial public importance."

"Title III’s applicability to web sites -- either because web sites are themselves places of public accommodation or because they have a sufficient nexus to such physical places of public accommodation -- is a matter of first impression before this Court. Unfortunately, this case does not provide the proper vehicle for answering these questions."

Related:
Access Now v. Southwest Airlines (U.S. Court of Appeals for the Eleventh Circuit)

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