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Home > Student > Law Review > Vol. 45 > Iss. 1 (2023)

 

Victoria Mosley

Abstract

Suppose you are a blind person who needs to refill your medication prescription at your local pharmacy. You want to use the pharmacy’s website feature that allows you to refill prescriptions from home because of the difficulties you face traveling to and from the building and the lack of privacy you feel inside the pharmacy. When you access the pharmacy’s website on your computer, you realize that ninety percent of the tabs on the pharmacy’s website do not work with your voice-over software. This is the compatible software that you use regularly to navigate the internet as a blind person. Then you think, is it fair or even legal that a blind person cannot receive the full and equal enjoyment of services or products from a website just because of their disability?

Congress addressed part of this issue when they passed the Americans with Disabilities Act (ADA) in 1990. Specifically, Title III of the ADA requires “places of public accommodation” to provide consumers with disabilities equal access to the goods and services of private establishments. Since the ADA was passed before the internet was mainstream in the United States, there is no explicit mention of the internet in the Act’s language. So, are online forums required to adhere to the requirements listed in Title III of the ADA? Seven of the United States Courts of Appeals have answered this question, but they have all used different tests in determining their outcomes. The use of different tests has become problematic for both consumers and business owners.

This Note will suggest that all of the current tests—the Intention Test, Nexus Test, and Impermissible Barrier Test—are inadequate. It will propose a new bright-line rule that should be adopted by the Department of Justice (DOJ) to enforce ADA coverage for websites and businesses that rely on e-commerce—the Traffic or Profit Test.

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