Lisa Rosenof, Associate Member, University of Cincinnati Law Review
When Mark Zuckerburg announced in October 2021 that Facebook was rebranding itself as Meta, it created buzz surrounding the long-awaited concept of the “Metaverse.” Now, the Metaverse, a virtual reality-like online platform, is beginning to exert influence in all facets of the world, and the legal realm is no exception. This rise in virtual reality-like online platforms calls into question the rights of individuals with disabilities in accessing these platforms. Importantly, circuit courts are currently split on whether a website qualifies as a place of public accommodation under the Americans with Disabilities Act (“ADA”). If courts are to adopt the textualist majority approach and hold that a website does not qualify as a place of public accommodation, individuals with disabilities will be disproportionately affected by being denied accessibility to a venue in which a potentially large majority of their lives depends on.
Consequently, in Section II, this article will give context as to the circuit split and the differing courts opinions. Then, in Section III, this article will argue that websites should be considered places of public accommodation under the ADA. Finally, this article will conclude in Section IV by urging the U.S. Supreme Court and/or Congress to define “place of public accommodation” broadly as to include both physical and virtual venues.
Pursuant to Congress, the purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Accordingly, the Act mandates that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Importantly, Title III of the Act provides twelve categories of private entities that qualify as “public accommodations,” such as hotels, restaurants, grocery stores, and many others, but it does not define the term “place of.” Thus, Title III leaves the term “place of” a public accommodation open to interpretation by the courts. As a result, the circuit courts are split on whether a “place of public accommodation” is limited to a physical space.
The first step in examining whether websites are “places of public accommodation” requires consideration of the two canons of statutory interpretation. These two predominant theories are textualism and purposivism. Generally, both theories share the same general goal of faithfully interpreting statutes enacted by Congress. Textualists and purposivists, however, disagree about the best way to determine Congress’s objective intent. Textualists focus on the words of the statute, emphasizing text over any unstated purpose, while purposivists argue that legislation is a purposive act, and judges should construe statutes to execute that legislative purpose.
A. The Majority Textualist Approach
The majority textualist approach adopted by the Third, Fifth, Sixth, Ninth, and Eleventh Circuits interprets “places of public accommodation” to apply only to physical locations. Thus, in the majority of states, websites are not considered a “place of public accommodation” and not subject to the requirements of the ADA.
i. Statutory Interpretation
The Third Circuit, in Ford v. Schering-Plough Corp., was the first to hold that the term public accommodation and the list of examples in the statute were not ambiguous and referred only to physical access. The court further expressed that “the plain meaning of Title III is that a place of public accommodation is a place…” Additionally, The Ninth Circuit, in Robles v. Domino’s Pizza, placed an emphasis on the language in the ADA detailing “services of any place of public accommodation,” as opposed to language stating “services in any place of public accommodation.” Further, the court noted that “to limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.”
Similarly, the Eleventh Circuit, in Gil v. Winn-Dixie Stores, used a strict textualist approach in its ruling, pointing to the extensive list of public accommodations within Title III. The Eleventh Circuit was the only federal circuit court of appeals to explicitly hold that websites are not places of public accommodation, as the ADA defines the term. The court noted that this list is limited to “actual, physical spaces.” Intangible spaces, like websites, simply are not places of public accommodation under the ADA, according to the Eleventh Circuit. However, the Eleventh Circuit recently vacated its April 2021 opinion on justiciability grounds. The court held that because the injunction requiring Winn-Dixie to improve its website had expired in 2020, there was no active dispute for the court to resolve at the time of its April 2021 decision.
ii. The Nexus Test
All circuits but the Eleventh Circuit require a sufficient nexus between the goods or services complained of and an actual physical place. By implementing this nexus test, the majority of circuits have held, with some variation in application, that a virtual space only avails itself of Title III requirements through its relationship to a corresponding physical space. Absent such a connection, the regulation does not reach the virtual space.
Applying the nexus test, the Ninth Circuit in Robles held that the alleged inaccessibility of Domino’s website impeded access to the goods and services of its physical pizza franchises, which are places of public accommodation. Thus, Title III regulates the websites making them subject to the requirements of the ADA because they “connect customers to the goods and services of Domino’s physical restaurants.”
Similarly, the Third Circuit in Ford, applied the nexus test but ultimately reached a different decision. There, the employee sued her employer, Schering, and the carrier of Schering’s group insurance policy, MetLife. According to the court, since the employee received her benefits via her employment at Schering, she had no nexus to MetLife’s “insurance office” and thus was not discriminated against in connection with a public accommodation. Thus, the court found that benefits received via employment created no nexus with any physical office to the insurer.
B. The Minority Puposivist Approach
The minority approach adopted by the First, Second, and Seventh Circuits, holds that a “place of public accommodation” is not limited to a physical place. Thus, websites can be places of accommodation independent of any connection to a physical space.
These courts opine that limiting the application of Title III to physical structures that consumers must enter to obtain goods and services would be contrary to the purposes of the ADA and Congress’ intent to ensure that individuals with disabilities fully enjoy the goods and services available to other members of the general public.
The First Circuit, in Carparts Distribution Center, Inc. v. Auto Wholesaler’s Association of New England, was the first to hold that a “place of public accommodation” is not limited to a physical place. In support, the court first pointed to the inclusion of the words “travel service” and “service establishment” in the list of “public accommodations.” According to the First Circuit, a “travel service” is not a physical place because “[m]any travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services.” The court also noted that a “service establishment” includes providers of services that do not require a person to physically enter an actual physical structure. Put differently, the court reasoned that a “place of public accommodation” is not limited to a physical place because the services of many entities, whose operations fall within one of the twelve “public accommodation” categories, are not limited to physical places. The court found that to conclude otherwise “would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”
For similar reasons, the Seventh Circuit, in Morgan v. Joint Administration Board, held that “a place of public accommodation” is not limited to a physical place. But unlike the First Circuit in Carparts, the court did not specifically reference any examples in the twelve “public accommodation” categories. The court instead relied on the other two reasons mentioned in Carparts – the services of an entity and the ADA’s purpose – in stating that “the site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services.” What matters is that the good or service is offered to the public.
A. Arguments for Not Considering Websites as Places of Public Accommodation
As with most cases, the issue here is one of statutory interpretation. The textualist argument follows that since websites are not explicitly defined in Title III of the ADA, they are not to be considered places of public accommodation.
Another prominent argument for not defining websites as places of public accommodation is the potential high cost of updating a website to make it accessible. Web accessibility applies to all disabilities that affect access to the web, including auditory, cognitive, neurological, physical, speech, and visual disabilities. Further, providing web accessibility can take many forms, whether it be providing text captions for video and audio tracks for users who are deaf or hard-of-hearing, providing screen readers for users who are blind or visually impaired, or allowing users to enlarge font sizes for users with low vision.
The cost of making a website accessible is based on a number of factors. So many, in fact, it is nearly impossible to give a hard number. However, the cost could range anywhere from a few thousand dollars to upwards of a million dollars. This cost could disproportionately impose burdens on small businesses, many of which may be unable to fund these changes to their websites and thus would be limited in their virtual footprint.
B. Arguments for Considering Websites as Places of Public Accommodation
As expressed by the minority purposivist approach, defining websites as places of public accommodation is consistent with the purpose of the ADA which is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
Individuals with disabilities are currently paying the price for Congress’s omission of websites from the list of places of public accommodation. This is amplified when considered in light of the COVID-19 pandemic. While self-quarantining, Americans used online platforms to work, buy food, consume news and entertainment, attend school, and communicate with friends and family. Thus, individuals with disabilities may not be able to order food if websites lack accessible interfaces. After all, accessibility breeds inclusiveness.
Additionally, to make up for the hit on small businesses, a tax credit is available to employers with gross receipts not exceeding $1,000,000 or that had no more than 30 full-time employees when they provided reasonable accommodations to individuals with disabilities in the previous year. An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA.
In an entirely virtual world, the need for accommodations in compliance with federal statutes will be more pronounced than ever, making a narrow interpretation of “places of public accommodation” as only physical places not only dated but also harmful in a way that courts could not have imagined. The majority approach is flawed in that it fails to consider situations that have become increasingly prominent during the pandemic. Pursuant to Robles v. Domino’s Pizza, which held that websites could be places of public accommodation only if they connected customers to physical locations, Domino’s could realistically evade the ADA by closing its physical restaurants and switching to a delivery-only ghost kitchen model. Additionally, since Netflix offers streaming video on a subscription basis and does not have retail stores, under the ruling of Robles, they would not be obliged to provide closed captioning or other accommodations. According to Robles, the same would apply for the Metaverse.
While the term has been floating around for the last few years, the word “metaverse” was coined by author Neal Stephenson in his 1992 sci-fi novel Snow Crash. In his book, Stephenson referred to the metaverse as an all-encompassing digital world that exists parallel to the real world. While we may not live in this sci-fi reality yet, technological advances are rapidly propelling daily life into the virtual world.
In a world that exists wholly virtually, with no links to physical locations, the current legal landscape allows the Metaverse to evade ADA requirements in the majority of states. The appeal of most virtual reality websites and applications is the user’s ability to escape into a different world and adopt a virtual persona. However, the Metaverse serves as an exact replica of the real world. Users can shop for real and virtual products, purchase real estate, attend concerts, and invest in digital artwork through NFTs. Thus, the Metaverse should be required to provide accommodations in a similar manner to the real world. As programmers code the virtual universe of the future, accommodations under the ADA should be as prominent to them as they are to an architect designing a building. The right to accommodations does not and should not end at the edge of a physical space and Congress should take steps to codify this and adapt to the changing landscape of necessary accommodations.
Given the lack of clear regulatory guidance or consensus among the federal courts, lawsuits challenging website accessibility are unlikely to end any time soon. Organizations are left to balance litigation risk against the potentially high cost of updating their websites and determine which standard they should follow. However, until the issue is resolved, many companies will neglect to make their online platforms accessible.
Because of the extreme split between the circuits, this issue is ripe to be addressed by the U.S. Supreme Court in the near future. The burden remains with Congress to pass meaningful legislation to clarify what is expected of businesses seeking ADA compliance. However, it behooves businesses to take proactive steps toward making their websites as accessible as possible. Congress should also step in and clarify the intent of the ADA in this application. If Congress fails to act, then the U.S. Supreme Court must resolve this circuit split before it leads to a sizeable discrepancy in the rights of individuals with disabilities that will only be further exacerbated by the rise of the Metaverse.
 42 U.S.C.A. § 12101.
 42 U.S.C.A. § 12182(a).
 42 U.S.C.A. § 12181(7).
 Statutory Interpretation: Theories, Tools, and Trends, Congressional Research Service (Apr. 2018), https://www.everycrsreport.com/reports/R45153.html#_Toc510711644 [https://perma.cc/CUE9-5HX6].
 Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998).
 Id. at 612; See also Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (holding that the verbiage of the statute clearly implies that it implicates only physical spaces and that a disability policy not obtained in an office transaction, but instead offered solely to a business (employer), is not a service or good offered by a place of accommodation subject to the ADA); See also Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) (holding that vending machines were not places of public accommodation because the ADA definition of public accommodation only includes actual physical spaces open to the public).
 Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).
 Id. at 905.
 Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), opinion vacated on reh’g, 21 F.4th 775 (11th Cir. 2021).
 Id. at 1277.
 Gil v. Winn-Dixie Stores, Inc., 21 F.4th 775 (11th Cir. 2021).
 Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905-06 (9th Cir. 2019); See also Domino’s Pizza, LLC v. Robles, 140 S. Ct. 122 (2019) (noting Domino’s petition for review from the U.S. Supreme Court and the subsequent denial).
 Id. at 905.
 Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998).
 Id. at 603.
 Id. at 613.
 Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New Eng., Inc., 37 F.3d 12, 19 (1st Cir. 1994).
 Id. at 20; See also Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999), opinion amended on denial of reh’g, 204 F.3d 392 (2d Cir. 2000) (holding that Title III’s mandate that the disabled be accorded “full and equal enjoyment of the goods, [and] services…of any place of public accommodation,” suggests that the statute was meant to guarantee them more than mere physical access).
 Morgan v. Jt. Admin. Bd., Ret. Plan of Pillsbury Co. and Am. Fedn. of Grain Millers, AFL-CIO-CLC, 268 F.3d 456 (7th Cir. 2001).
 Id. at 459.
 Manish Dudharejia, 9 Ways You Can Make Your Website More Accessible, Search Engine Journal (Aug. 2020), https://www.searchenginejournal.com/make-website-more-accessible/347450/#close [https://perma.cc/V26W-EMRR].
 Marc Avila, The Cost of Making Your Website Accessible, 3 Media Web (Jan. 30, 2020), https://www.3mediaweb.com/blog/the-cost-of-making-your-website-accessible/ [https://perma.cc/8R25-L2NZ].
 42 U.S.C.A. § 12101.
 What financial assistance is available to employers to help them make reasonable accommodations and comply with the ADA?, ADA National Network (Apr. 2022), https://adata.org/faq/what-financial-assistance-available-employers-help-them-make-reasonable-accommodations-and#:~:text=An%20eligible%20small%20business%20may,%24250%20but%20less%20than%20%2410%2C250 [https://perma.cc/H95T-EGFL].
 Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).
 Shamani Joshi, The Metaverse, Explained for People Who Still Don’t Get it, Vice (Mar. 15, 2022), https://www.vice.com/en/article/93bmyv/what-is-the-metaverse-internet-technology-vr [https://perma.cc/CBG7-YG5N].
 What Can You Do in the Metaverse, XR Today (Mar. 4, 2022), https://www.xrtoday.com/virtual-reality/what-can-you-do-in-the-metaverse/ [https://perma.cc/KR37-E2KM].