Smartphone with cloud of application iconsOr at least businesses that use apps to broker goods and services. In a decision dated February 20, 2015 the United States District Court for the Western District of Texas denied a second Motion to Dismiss filed by the ride sharing services Lyft and Uber.  Ramos v. Uber Technologies, Inc., 2015 WL 758087 (W.D. Tex. Feb. 20, 2015). The Court does not reach a conclusion as to whether these services are subject to the ADA, but it’s approach indicates that the battles over smartphone apps and the ADA are going to be lengthy and expensive.

The Court begins its analysis by rejecting the idea that Lyft and Uber cannot be subject to the ADA because they are not “public accommodations.” The point seems obvious since, as the Court observes, 42 U.S.C. section 12184 creates an ADA obligation that is distinct from the public accommodation obligations in 42 U.S.C. section 12182. In any case, the Court rejects the idea that private transportation services must also be public accommodations. More interesting for other businesses is the Court’s observation that the breadth of the ADA may expand to meet new circumstances.

The Court next turns to the key question: do Lyft and Uber provide the kind of transportation services covered by 42 U.S.C. section 12184? The position of Lyft and Uber is simple: They “are not engaged in the business of transporting people, but are simply mobile-based ridesharing platforms to connect drivers and riders.” The Court, finding the allegation that they do provide a service plausible, holds that this is a “mixed question of law and fact” that cannot be resolved based only on the pleadings.

The Court also concludes that whether Lyft and Uber can provide a reasonable accommodation for disabled riders will require investigation of the facts. The Court does not accept the argument that Uber has no control over its drivers because, as the Court points out, Uber requires things like a clean driving record and a four door vehicle. If it can require one thing, then of course it can require another. It is similarly skeptical of Uber’s demand that the plaintiff describe the accommodation required. Software is software, and the Court observes the Uber can “presumably” modify the software to allow those with disabilities to identify themselves and connect with drivers who have accessible cars. In any case, because the matter will require factual investigation it appears that this lawsuit will continue for years at considerable expense.

There is a takeaway for businesses beyond the world of ridesharing. If a smartphone app or web based enterprise serves to connect buyers of goods and services with sellers who are a public accommodation then the ADA may apply, even if the app based business is “independent” of the sellers.  Businesses that have avoided becoming a public accommodation by avoiding brick and mortar and acting only as a middle-man ( and might be examples) may be subject to some ADA requirements. This is not a question of whether the web site is accessible (Some Courts have found that web sites must be accessible because they connect customers to a physical store, and the Department of Justice asserts that all web sites are public accommodations). In this case is whether the broker who developed the app has some responsibility for the accessibility of its sellers. The long arm of the Americans with Disabilities Act may be getting longer.