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The scales of justice

Icon of a storefront with Title IIIEarlier this month, a federal District Court in New Hampshire denied the defendant’s motion to dismiss a lawsuit in Access Now, Inc. v. Blue Apron. The plaintiffs, who are blind, were unable to access Blue Apron’s website with screen reading software. The plaintiffs allege this is a violation of Title III of the Americans with Disabilities Act (ADA).

For those not familiar with the company, Blue Apron is an Internet business that ships meal kits, which include pre-measured ingredients, along with recipes, to consumers so that they can cook a meal without the need to go a grocery store. As an aside, while many may believe that people who are blind or low vision cannot cook, that is not the case. Level Access’s Bryan Garaventa, who is blind, recently wrote about his love for the InstantPot.

The plaintiffs had many specific complaints about the website, including that several images lacked alternate text and the cooking demonstration videos on Blue Apron’s website did not have an option for audio description. Blue Apron’s argument hinges on the contention that, as an online-only business, it does not qualify as a “place of public accommodation,” as defined in the ADA. Though courts in several jurisdictions have ruled that websites with a connection (“nexus”) to a brick-and-mortar location qualify as places of public accommodation, there is little consensus on how the ADA applies to online-only businesses.

In Blue Apron, the court relied on a 1994 case from the First Circuit Court of Appeals (a higher court within the same jurisdiction). The case, Carparts Distribution Center Inc v Automotive Wholesaler’s Association of New England, noted that in the list of examples of public accommodations in the ADA, “travel services” are included. At the time, many travel services operated by telephone and had no physical location for customers to enter.

The holding in Carparts, that no physical location was necessary for a business to be a “public accommodation,” was instrumental in denying the defendant’s motion to dismiss in National Association of the Deaf v. Netflix (2012) in a federal District Court in Massachusetts (also part of the First Circuit). The Netflix decision could spell bad news for another streaming service: Hulu, who was recently sued in Massachusetts for not providing audio description for its content.

Although Blue Apron clarifies where the First Circuit stands, the fact that other courts have reached differing conclusions on similar fact patterns just makes the digital accessibility waters murkier.

This blog post is for informational purposes only and does not constitute legal advice.