Supreme_Court_of_the_United_StatesI blogged last year about the Fifth Circuit’s decision in Magee v. Coca–Cola Refreshments USA, Inc., 833 F.3d 530, 531 (5th Cir. 2016) (ADA and the Internet – what non-internet cases can tell us.) as well as the District Court’s similar holding (Vending Machines and the ADA).  It looked like an interesting case, and it seems the Supreme Court may agree. As reported by Dan Fisher in Forbes (Supreme  Court asks government if a Coke machine must be ADA compliant),* on February 27 the Supreme Court docketed a request to the Solicitor General for input on Magee’s pending petition for certiorari. The Supreme Court’s ADA decisions have focused almost exclusively on employment and education, not business accessibility, and while certiorari has not been granted, this request shows unusual interest in this aspect of the ADA.

The Supreme Court has two reasons to be interested in this case. One is the application of the ADA to changing technologies. Before the introduction of point of sale credit card readers both blind and sighted individuals had to give their credit card to the human who ran the credit card slip. There was an equal lack of privacy. The first generation of point of sale credit card readers gave back this privacy by letting the customer swipe the card so the cashier never saw it. Your information was vulnerable to Russian hackers, but not to the store clerk. This first generation of point of sale devices was also somewhat friendly to the blind because the input pad used button keys that could be felt and navigated. More recent point of sale devices use touch screens that are not usable by blind. This creates a disparity, because the privacy of sighted individuals is protected while the privacy of blind individuals is not. What technology once gave to everyone it has now taken away from the disabled  (although a new generation of accessible point of sale devices is already on the market.)

Should every emerging technology be equally accessible right out of the box? ATM machines were given a pass from ADA compliance for several years while manufacturers developed the means to make them accessible. Unfortunately other emerging technologies are not given the same chance to develop. Both private litigants and the Department of Justice claim that every new technology be equally accessible to all as soon as it is introduced and they apply this rule even when there is no good definition of “accessible” for that technology. This is an important issue, but it seems unlikely the Supreme Court will rule on it because it is not squarely presented in the Magee case.

The broader issue concerns the definition of public accommodation. At the heart of Magee’s argument concerning a Coca Cola vending machine is the notion that every possible consumer transaction must be equally accessible to those with disabilities.  Thus, if a person with sight can buy a Coke from a machine then a blind person must be able to as well. If a person with vision can use a website then a blind person must be able to as well.

This broader issue is not really about technological change. Old style vending machines were equally unfriendly to the blind because you had to see the product to know which buttons to push to get it. If older machines were not public accommodations then regardless of technological change the new machines aren’t either. Similarly, if commercial internet sites that existed in 1991 (such as AOL and Yahoo) were not public accommodations, then regardless of technological change those sites should not be public accommodations today.

Technology figures in this discussion because it seems to promise accessibility that wasn’t possible in the past. The Magee opinion starts with a long list of the technological marvels in the latest generation of vending machines. If the new machine can do all those things, then why not voice recognition and interaction for the blind? It’s an interesting question, but it isn’t meaningful in terms of what constitutes a public accommodation. Some services of a public accommodation may need to be accessible because it is technologically feasible to make them accessible, but that has nothing to do with what is a public accommodation.

Technology also seems important because changes in technology can change the importance of particular types of consumer transactions. In 1991 inaccessible websites didn’t seem to be a big issue. Today inaccessibility of web sites feels like deprivation that really matters. That is and always has been DOJ’s basic argument for website accessibility. It has to be covered by the ADA because it is economically important.

That brings us back to the fundamental question of statutory construction. Did Congress intend the coverage of Title III to depend on the economic importance of a particular kind of business or was it aimed at the specific kinds of business listed as public accommodations. If it is the former there is a serious disconnect with the language of the statute, which pays no attention to the economic importance of the types of businesses actually listed as public accommodations. The smallest candle shop in the smallest village in Vermont is required to be accessible despite the fact that it may never see a disabled customer. If the internet was excluded in 1991 because of its small economic importance at the time, why was the statute written to include every kind of physical place of business regardless of economic importance? ADA coverage depends on the language of the statute, not changes in technology, and therefore only Congress can expand the ADA beyond its present application to physical places of business. Perhaps we will learn soon whether the Supreme Court agrees.

*It is only fair to note that I believe this is a great article, in part because I am quoted in it.